David v. State, 369 So. 2d 943 (Fla. 1979). · Go Syfert
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David v. State, 369 So. 2d 943 (Fla. 1979). Cases Citing This Book View Copy Cite
61 citation events (6 in the last 25 years) across 2 distinct courts.
Strongest positive: Marston v. State (fla, 2014-03-27)
Treatment trajectory · 1979 → 2026 · click a year to view as-of
1979 2002 2026
Top citers, strongest first. 16 distinct citers. How cited ↗
cited Cited as authority (rule) Marston v. State
Fla. · 2014 · confidence medium
In David v. State, 369 So.2d 943, 944 (Fla.1979), we adopted the "fairly susceptible” test. .
discussed Cited as authority (rule) Sanchez-Basulto v. State
Fla. Dist. Ct. App. · 1992 · confidence medium
Finally, we hold that the prosecutor's remarks during closing argument were not "`fairly susceptible' of being interpreted by the jury as referring to ... defendant's failure to testify... ." David v. State, 369 So.2d 943, 944 (Fla. 1979); see State v. DiGuilio, 491 So.2d 1129 (Fla. 1986); State v. Kinchen, 490 So.2d 21 (Fla. 1985).
discussed Cited as authority (rule) Love v. State
Fla. Dist. Ct. App. · 1991 · confidence medium
We agree that the judge's comment — "you will not hear both sides of the story" — is "`fairly susceptible' of being interpreted by the jury as referring to a criminal defendant's failure to testify... ." David v. State, 369 So.2d 943, 944 (Fla. 1979); State v. DiGuilio, 491 So.2d 1129 (Fla. 1986); State v. Kinchen, 490 So.2d 21 (Fla. 1985); see Diecidue v. State, 131 So.2d 7 (Fla. 1961); Danford v. State, 492 So.2d 690 (Fla. 4th DCA 1986); McClain v. State, 353 So.2d 1215 (Fla. 3d DCA 1977), cert. denied, 367 So.2d 1126 (Fla. 1979).
discussed Cited as authority (rule) Taylor v. State
Fla. Dist. Ct. App. · 1986 · confidence medium
See Washington v. State, 432 So.2d 44, 47 (Fla. 1983); David v. State, 369 So.2d 943, 944 (Fla. 1979); Smith v. State, 365 So.2d 704, 706-07 (Fla. 1978), cert. denied, 444 U.S. 885 , 100 S.Ct. 177 , 62 L.Ed.2d 115 (1979); Essix v. State, 347 So.2d 664, 665 (Fla. 3d DCA 1977), cert. denied, 357 So.2d 185 (Fla. 1978).
discussed Cited as authority (rule) Samosky v. State
Fla. Dist. Ct. App. · 1983 · confidence medium
We specifically reject the state's contention that we consider this comment a harmless error because the law of Florida is well-settled that “such a comment requires the reversal of a conviction and that the harmless error rule does not apply,” Harris v. State, 438 So.2d 787 (Fla.1983), that “[a]ny comment on an accused’s exercise of his right to remain silent is reversible error, without regard for the harmless error doctrine,” Donovan v. State, 417 So.2d 674, 675 (Fla.1982), and that “[a]ny comment which is ‘fairly susceptible’ of being interpreted by the jury as referring to…
discussed Cited as authority (rule) Layton v. State
Fla. Dist. Ct. App. · 1983 · confidence medium
Because the prosecutor's closing argument comment "[As] you know, it doesn't take a genius to figure out that Mr. Layton and Mr. Parker, as opposed to the other witnesses, have been sitting here in this courtroom with the advantage and ability to listen to how each witness testified ..." is, particularly where Parker, the co-defendant, testified, "fairly susceptible," David v. State, 369 So.2d 943, 944 (Fla. 1979), of being interpreted by the jury as referring to Layton's failure to testify, see Hall v. State, 364 So.2d 866 (Fla. 1st DCA 1978); Singleton v. State, 183 So.2d 245 (Fla. 2d DCA 19…
cited Cited "see" Johnson v. State
Fla. Dist. Ct. App. · 2007 · signal: see · confidence high
See State v. Kinchen, 490 So.2d 21 (Fla.1985) (upholding the “fairly susceptible” test adopted in David v. State, 369 So.2d 943 (Fla.1979)).
cited Cited "see" Augustine v. State
Fla. Dist. Ct. App. · 1988 · signal: see · confidence high
See David v. State, 369 So.2d 943 (Fla.1979). 1 As such, the admission of the comment is constitutional error subject to the harmless error test.
discussed Cited "see" Porterfield v. State
Fla. Dist. Ct. App. · 1988 · signal: see · confidence high
See David v. State, 369 So.2d 943 (Fla.1979) (determining that prosecutor’s remarks and closing argument which queried ‘why didn’t he [the defendant] say anything about’ certain specified transactions were fairly susceptible of interpretation by the jury as referring to the defendant’s failure to testify).
cited Cited "see" Hosper v. State
Fla. Dist. Ct. App. · 1987 · signal: see · confidence high
See David v. State, 369 So.2d 943 (Fla. 1979); Lee v. State, 422 So.2d 928 (Fla. 3d DCA 1982), pet. for review denied, 431 So.2d 989 (Fla. 1983).
discussed Cited "see" Helton v. State
Fla. Dist. Ct. App. · 1982 · signal: see · confidence high
See David v. State, 369 So.2d 943 (Fla. 1979), as to inapplicability of the harmless error doctrine when a comment is fairly susceptible of being regarded by the jury as a reference to defendant's failure to testify.
cited Cited "see" Tacoronte v. State
Fla. Dist. Ct. App. · 1982 · signal: see · confidence high
See David v. State, 369 So.2d 943 (Fla. 1979); Gosney v. State, supra .
cited Cited "see" Ramos v. State
Fla. Dist. Ct. App. · 1982 · signal: see · confidence high
See David v. State, 369 So.2d 943 (Fla. 1979).
cited Cited "see" Dunn v. State
Fla. Dist. Ct. App. · 1981 · signal: see · confidence high
See David v. State, 369 So.2d 943 (Fla.1979).
cited Cited "see, e.g." Stuart v. State
Fla. Dist. Ct. App. · 1982 · signal: compare · confidence low
Compare David v. State, 369 So.2d 943 (Fla.1979).
discussed Cited "see, e.g." Lee v. State
Fla. Dist. Ct. App. · 1982 · signal: see, e.g. · confidence low
See, e.g., David v. State, 369 So.2d 943 (Fla. 1979); Clark v. State, 363 So.2d 331 (Fla. 1978); Bennett v. State, 316 So.2d 41 (Fla. 1975); Ruiz v. State, 378 So.2d 101 (Fla. 3d DCA 1979); Barnes v. State, 375 So.2d 40 (Fla. 3d DCA 1979); Knight v. State, 374 So.2d 1065 (Fla. 3d DCA 1979).
Retrieving the full opinion text from the archive…
Jack DAVID, Petitioner,
v.
STATE of Florida, Respondent.
52394.
Supreme Court of Florida.
Mar 22, 1979.
369 So. 2d 943
Adkins.
Cited by 53 opinions  |  Published

Richard L. Jorandby, Public Defender, and Craig S. Barnard, Chief Asst. Public Defender, West Palm Beach, for petitioner.

Jim Smith, Atty. Gen., Marsha G. Madorsky and Joy B. Shearer, Asst. Attys. Gen., West Palm Beach, for respondent.

ADKINS, Justice.

By Petition for Certiorari, we have for review a decision of the Fourth District Court of Appeal. David v. State, 348 So.2d 420 (Fla. 4th DCA 1977), which allegedly conflicts with a prior decision of the District Court of Appeal. Childers v. State, 277 So.2d 594 (Fla. 4th DCA, 1973) on the same point of law. Florida Constitution, Article V, Section 3(b)(3), provides that this court may review by certiorari any decision of a District Court of Appeal that is in direct conflict with a decision of "any District Court of Appeal."

Prior to its amendment in 1972, the Constitution gave this court jurisdiction to review by certiorari any decision of a District Court of Appeal that was in direct conflict with a decision of "another District Court[*944] of Appeal." Fla. Const. 1956, Article V, Section 4(2). Under the 1972 amendment the fact that the conflict arises between two decisions of the same District Court of Appeal does not prevent us from taking jurisdiction.

The petitioner, defendant below, was convicted of the crime of grand larceny. In his closing argument the prosecutor made the following remarks:

"Well, ladies and gentlemen, there was no evidence of business failure. That's very important. You see, you can't go outside the evidence. There is no evidence of business failure, you would have heard evidence, you would have heard from the accountants of the defendant's business, his bookmaker, his records, bankruptcy proceedings. Where is that evidence? That's why his business failure makes no sense in this case. If he had a business failure, why didn't he say anything about the Jozefyks, about the Groves and about the Foxes?" (emphasis supplied)

Defense counsel immediately moved for a mistrial. The court denied the motion, being of the opinion that there was no direct reference to the defendant.

A prosecutor's comment on defendant's failure to testify is a serious constitutional violation. See, e.g., Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); cf. Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957).

Any comment which is "fairly susceptible" of being interpreted by the jury as referring to a criminal defendant's failure to testify constitutes reversible error, without resort to the harmless error doctrine. E.g., Trafficante v. State, 92 So.2d 811 (Fla. 1957);

Kolsky v. State, 182 So.2d 305 (Fla. 2d DCA 1966); Milton v. State, 127 So.2d 460 (Fla. 2d DCA 1961); cf. King v. State, 143 So.2d 458, 464-466 (Fla. 1962) (Hobson, J., concurring).

Judge Mager in his dissent (David v. State, supra, at page 421) said:

"It appears to me that this court's recent decision in Childers v. State, 277 So.2d 594 (Fla. 4th DCA 1973), requires a reversal. Childers dealt with a far more nebulous reference to the defendant's silence. This court, however, observed that if the prosecutorial comment:
`is fairly susceptible of being interpreted by the jury as a statement to the effect that "an innocent man would attempt to explain the circumstances but the defendant offered no such explanation ..."'
"then the comment thus interpreted or construed violated the prohibition of the rule. What could be a clearer reference to the defendant's silence than the prosecutor's comment: `Why didn't he [referring to the defendant] say anything about ...' There is no need to resort to possible interpretations or constructions of the prosecutorial comment when there is such a direct reference to the defendant's silence."

This dissenting opinion may be resorted to in determining whether or not a conflict exists. Autrey v. Carroll, 240 So.2d 474 (Fla. 1970); Keller v. Keller, 308 So.2d 106 (Fla. 1974).

We have jurisdiction. The majority decision of the District Court of Appeal is quashed.

It is so ordered.

BOYD, SUNDBERG and HATCHETT, JJ., concur.

ENGLAND, C.J., and OVERTON, J., dissent.