stand in his own defense in Florida

1966Trafficante v. State, Fla.1957, 92 So.2d 811 .” In a case recently decided by the Third District Court of Appeal, Gardner v. State, Fla.App.1965, 170 So.2d 461 , the appellant, defendant below, did not take the stand in his own defense.

1959When such impression has been made on the' minds of the jurors it cannot by this Court be said ‘that the error complained of has (not) resulted in a miscarriage of justice.’ ” In two other very recent cases, Trafficante v. State, Fla.1957, 92 So.2d 811 , and Gordon v. State, Fla.1958, 104 So.2d 524 , the Supreme Court has reversed the lower court for failure to grant a mistrial upon improper comments by the prosecuting attorney to the jury on the failure of the defendant to take the stand in his own defense.

2019Id.

2009As noted in Johnson , some courts view comments about drug areas to be less harmful where the defendant denies being present at all, since under these circumstances the defendant is less likely to be convicted through “guilt by association.” Johnson, 670 So.2d at 1123 (citing Davis v. State, 562 So.2d 443 (Fla. 2d DCA 1990)).

2009As noted in Johnson , some courts view comments about drug areas to be less harmful where the defendant denies being present at all, since under these circumstances the defendant is less likely to be convicted through “guilt by association.” Johnson, 670 So.2d at 1123 (citing Davis v. State, 562 So.2d 443 (Fla. 2d DCA 1990)).

1998In reaching this conclusion, the Court relied on Raffel v. United States, 271 U.S. 494 , 46 S.Ct. 566 , 70 L.Ed. 1054 (1926).

1998In reaching this conclusion, the Court relied on Raffel v. United States, 271 U.S. 494 , 46 S.Ct. 566 , 70 L.Ed. 1054 (1926).

1998Jenkins, 447 U.S. at 235 , 100 S.Ct. 2124 , 65 L.Ed.2d 86 ; see also supra note 6.

1998Jenkins, 447 U.S. at 235 , 100 S.Ct. 2124 , 65 L.Ed.2d 86 ; see also supra note 6.

1987Nelson v. O'Neil, 402 U.S. 622 , 91 S.Ct. 1723 , 29 L.Ed.2d 222 (1971).

1987Nelson v. O'Neil, 402 U.S. 622 , 91 S.Ct. 1723 , 29 L.Ed.2d 222 (1971).

1983We have examined the entire context of the line of *204 questions, see Gosney v. State, 382 So.2d 838 (Fla. 5th DCA 1980), and cannot characterize them as comments on defendant's right to remain silent.

1976The rule with respect to the prosecutor's statement here is exemplified in Dabney v. State, 119 Fla. 341 , 161 So. 380 (1935), where this Court stated: "... [T]he failure of the defendant to testify cannot be taken or considered as any admission against his interest; but, if a defendant voluntarily takes the stand and testifies as a witness in his own behalf, then he becomes subject to cross-examination as any other witness, and the prosecuting officer has the right to comment on his testimony, his manner and demeanor on the stand, the reasonableness or unreasonableness of his statements, and

1976The rule with respect to the prosecutor's statement here is exemplified in Dabney v. State, 119 Fla. 341 , 161 So. 380 (1935), where this Court stated: "... [T]he failure of the defendant to testify cannot be taken or considered as any admission against his interest; but, if a defendant voluntarily takes the stand and testifies as a witness in his own behalf, then he becomes subject to cross-examination as any other witness, and the prosecuting officer has the right to comment on his testimony, his manner and demeanor on the stand, the reasonableness or unreasonableness of his statements, and

1975However, we align ourselves with those federal courts (including the U.S. *477 5th Circuit in United States v. Ramirez, supra) and those federal judges who have concluded that once the defendant takes the stand in his own defense, he waives his immunity under the Fifth Amendment and subjects himself, like any other witness, to the full truth-testing process.

1967In Tolliver v. State, Fla.App.1961, 133 So.2d 565 , at page 566, the history and rsignificance of F.S. § 918.09, F.S.A. is explained as follows: “This statute, or its predecessors have been a part of the law of this State since 1853, and affords an accused protection from any comment, either directly or indirectly, by the prosecution on his failure to take the stand in his own defense.

1966Trafficante v. State, Fla.1957, 92 So.2d 811 .” In a case recently decided by the Third District Court of Appeal, Gardner v. State, Fla.App.1965, 170 So.2d 461 , the appellant, defendant below, did not take the stand in his own defense.

1962Such comment must be considered in "all its stark significance." I quote with approval from the case of Quinn v. People, 123 Ill. 333 , 15 N.E. 46 , when the Illinois Court in discussing this subject said: "How much did it avail for the court to tell the jury that the remarks of Counsel were improper?" "* * * as well might one attempt to brush off with the hand a stain of ink from a piece of white linen." An instruction by a trial judge to the jurors to disregard and cast from their minds such a comment by the prosecutor would be as futile as was Lady Macbeth's mournful command [7] "Out, damne

1962Such comment must be considered in "all its stark significance." I quote with approval from the case of Quinn v. People, 123 Ill. 333 , 15 N.E. 46 , when the Illinois Court in discussing this subject said: "How much did it avail for the court to tell the jury that the remarks of Counsel were improper?" "* * * as well might one attempt to brush off with the hand a stain of ink from a piece of white linen." An instruction by a trial judge to the jurors to disregard and cast from their minds such a comment by the prosecutor would be as futile as was Lady Macbeth's mournful command [7] "Out, damne

1962I quote from Rowe v. State, 87 Fla. 17 , 98 So. 613 , 618: "We hold that calling the attention of the jury, by the prosecuting officer of the state, to the failure of the accused to testify in his own behalf, it matters not how adroitly he may attempt to evade the command of the statute, or how innocently it may be done, comes within the exception [6] and *468 deprives the defendant of the protection the statute was intended to secure, and of his constitutional right to a fair and impartial trial." (Italics supplied.) I would reaffirm our previous pronouncement that the portentous effect of co

1962I quote from Rowe v. State, 87 Fla. 17 , 98 So. 613 , 618: "We hold that calling the attention of the jury, by the prosecuting officer of the state, to the failure of the accused to testify in his own behalf, it matters not how adroitly he may attempt to evade the command of the statute, or how innocently it may be done, comes within the exception [6] and *468 deprives the defendant of the protection the statute was intended to secure, and of his constitutional right to a fair and impartial trial." (Italics supplied.) I would reaffirm our previous pronouncement that the portentous effect of co

1959When such impression has been made on the' minds of the jurors it cannot by this Court be said ‘that the error complained of has (not) resulted in a miscarriage of justice.’ ” In two other very recent cases, Trafficante v. State, Fla.1957, 92 So.2d 811 , and Gordon v. State, Fla.1958, 104 So.2d 524 , the Supreme Court has reversed the lower court for failure to grant a mistrial upon improper comments by the prosecuting attorney to the jury on the failure of the defendant to take the stand in his own defense.