ALISHA WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Williams was convicted of armed robbery, but the Fourth District Court of Appeal reversed his conviction because the trial court committed two reversible errors: allowing the prosecutor to comment on Williams' failure to produce a telephone witness he never presented as part of his defense, and allowing improper cross-examination testimony about the general reliability of eyewitness identification.
The court held that the trial court erred in both respects: (1) the prosecutor improperly commented on Williams' failure to produce a telephone witness that was never made part of Williams' defense, violating his right to remain silent and the presumption of innocence; and (2) the court erred in allowing testimony about the general tendency of crime victims to remember evidence differently over time, as this amounted to an improper comment on the reliability of eyewitness identification.
[1] A prosecutor may not comment on a defendant's failure to produce witnesses to corroborate an alibi defense when the defendant presents no alibi.
[2] When a defendant presents an alibi defense, the state may comment on the defendant's failure to produce an alibi witness if the witness is competent and available.
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Join FLexlaw to unlock all legal intelligence“The state may not comment on defendant's failure to produce witnesses to corroborate an alibi defense when defendant presents no alibi.”
Establishes the foundational rule that prosecutorial comment on missing witnesses is improper absent a presented alibi defense
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Join FLexlaw to unlock all legal intelligenceWilliams was arrested and charged with armed robbery for alleged participation in a holdup outside a Lauderdale Lakes business. Williams told investig…
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PER CURIAM.
Defendant Williams was arrested and charged with armed robbery for his alleged participation in a hold up outside of a Laud-erdale Lakes business. For the reasons which follow, we reverse Mr. Williams’ conviction.
The state may not comment on defendant’s failure to produce witnesses to corroborate an alibi defense when defendant presents no alibi. Brown v. State, 524 So. 2d 730 (Fla. 4th DCA 1988). On the other hand, when defendant forwards an alibi defense, the state may properly comment on defendant’s failure to produce an alibi witness, provided that the witness is competent and available. Hall v. State, 470 So. 2d 796 (Fla. 4th DCA 1985), quashed on other grounds, 517 So. 2d 678 (Fla.1988); Romero v. State, 435 So. 2d 318 (Fla. 4th DCA 1983), rev. denied, 447 So. 2d 888 (Fla. 4th DCA 1984).
In our case, Williams did not file a notice of alibi, nor did he testify at trial. In a statement to investigators, he indicated that he was at home at the time of the crime, watching television and talking on the telephone. Williams’ mother testified at trial that Williams was indeed at home watching television, but at no time did Williams ever make his telephone conversations part of his defense. During its closing remarks, the state nevertheless commented on Williams’ failure to produce as a witness the person at the other end of this telephone conversation. As explained recently by Judge Klein:
“When a prosecutor refers to a defendant’s failure to call certain witnesses, it may violate the right to remain silent. It is also inconsistent with the presumption of innocence and the state’s burden to prove guilt beyond a reasonable doubt.” Lawyer v. State, No. 91-2768, 1993 WL 182516 (Fla. 4th DCA June 2, 1993) (citing Romero). We find that the trial court erred in overruling Williams’ objection to the comment and in denying his motion for mistrial.
At trial, Williams also called Deputy Howard as a witness, the investigator who interviewed the victims immediately after the alleged robbery. Williams called Howard to point out inconsistencies in the victims’ descriptions of the assailants at trial as compared to their descriptions immediately after the incident. After Williams’ direct examination accomplished this effect, the following occurred on cross:
[STATE], Sir, it’s not uncommon for victims of a crime like this to remember things, evidence later? [DEFENSE], Objection as to relevancy. [COURT]. Overruled. Well. Maybe you want to qualify it before I let you go into that area. [STATE]. Sir, you have been in law enforcement 20 years— [DEFENSE]. Excuse me. I object to what other victims in other crimes experienced. It has no relevancy to this case. These victims were here. Other victims are not here. [STATE]. It’s directly relevant on their ability to give a description. [COURT]. I’ll overrule the objection. [STATE]. You have been a law enforcement officer 20 years you said? A. Correct. Q. You have come in contact with a lot of armed robberies? A. Yes. Q. And victims of crimes such as this-and violence such as this? A. That’s correct. Q. As such you have become aware of descriptions that victims give at the scene, correct? A. That’s correct. Q. There may be later descriptions or other evidence that they might remember, correct? A. That’s correct. Q. Isn’t it true it’s not unusual for them to remember additional evidence as time goes on? A. That’s true. Q. Different than what they might remember at the scene— A. Yes. Q. —when they are still affected by the crime? A. That is true. We find that the court erred not only because this evidence is irrelevant, but also because it amounted to an improper comment on the reliability of eyewitness identification. See Hooper v. State, 476 So. 2d 1253 (Fla.1985), cert, denied, 475 U.S. 1098, 106 S.Ct. 1501, 89 L.Ed.2d 901 (1986).
DELL, FARMER and KLEIN, JJ., concur.
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Olsen v. State, 778 So. 2d 422 (Fla. 5th DCA 2001)…improper bolstering of witness, and constituted reversible error in prosecution for delivery of cocaine, where informant was only witness called to testify as to drug transaction that allegedly took place inside the car); see also Williams v. State, 619 So. 2d 1044 (Fla. 4th DCA 1993) (after inconsistencies between victim’s testimony and statement to police at time of crime were introduced by defendant, deputy’s testimony that it was not uncommon for victims to remember additional details subsequent to the fir…
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Morgan v. State, 700 So. 2d 29 (Fla. 2d DCA 1997)…an did not intend to assert an alibi defense, and that the state was attempting to create such a defense by its questions. The trial court overruled the objection. The prosecutor’s creation of a “straw man” alibi was clear error. Williams v. State, 619 So. 2d 1044 (Fla. 4th DCA 1993); Lane v. State, 459 So. 2d 1145 (Fla. 3d DCA 1984)(“Because the whole issue of alibi was raised by the state, we find the prosecutor’s ‘straw man’ argument ... may have led the jury to believe that appellant had the burden of pro…
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Tierney Cyprian v. State, 661 So. 2d 929 (Fla. 4th DCA 1995)…s just sustained. THE COURT: I’ll overrule the objection. A. Not — It’s not unusual for somebody to say that that’s a possibility. Q. Has it happened in your experience, that same scenario? A. Yes. A similar colloquy took place in Williams v. State, 619 So. 2d 1044 (Fla. 4th DCA 1994) wherein the appellant called as a witness the police investigator who interviewed the victims immediately after the alleged robbery. During cross-examination by the state the following colloquy took place: [STATE], Sir, it’s not…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hall v. State, 517 So. 2d 678 (Fla. 1988)
- Hooper v. State, 476 So. 2d 1253 (Fla. 1985)
- Fidel Romero v. State, 435 So. 2d 318 (Fla. 4th DCA 1983)
- Merriweather v. United States, 475 U.S. 1098 (U.S. 1986)
- Schell v. United States, 475 U.S. 1098 (U.S. 1986)
- Brown v. State, 524 So. 2d 730 (Fla. 4th DCA 1988)
- Hall v. State, 470 So. 2d 796 (Fla. 4th DCA 1985)