SCOTTIE B. ASH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a comment upon a defendant's silence at the time of arrest is a constitutionally impermissible comment on the exercise of the right to remain silent.
[1] A comment on a defendant's post-arrest silence is constitutionally impermissible under the Florida Declaration of Rights.
[2] Post-arrest silence includes silence occurring at the time of arrest, not solely after the defendant is informed they are under arrest.
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Join FLexlaw to unlock all legal intelligenceAn arresting officer testified that the appellant stated he had nothing to say when asked if they could talk more about what happened, prior to being …
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ALLEN, J.
The appellant in this direct criminal appeal challenges his conviction, arguing that the arresting officer’s trial testimony included a constitutionally impermissible comment upon the appellant’s pretrial exercise of his right to remain silent and that the trial court therefore abused its discretion in denying the appellant’s timely motion for a mistrial. We reverse the appellant’s conviction because the comment related to the appellant’s silence at the time of his arrest.
The officer testified that when he went to the appellant’s apartment for the purpose of arresting him, the appellant was not immediately arrested. Instead, the officer first asked the appellant “if we could talk some more about what had happened,” to which the appellant “replied that he’s got nothing to say to me.” The appellant was then placed under arrest.
Relying upon the decision of the Florida Supreme Court in State v. Hoggins, 718 So. 2d 761 (Fla.1998), the appellant argues that the officer’s testimony was an impermissible comment upon his right to pretrial silence as guaranteed by the Florida Declaration of Rights. The Court held in Hoggins that article I, section 9 of the Florida Constitution precludes trial comment upon a defendant’s “postarrest silence,” explaining that “postarrest silence is not limited to silence which occurs after the arresting officer informs the defendant that he or she is under arrest,” in that it “also includes silence which occurs at the time of arrest.” Id. at 767. Indeed, the objectionable comments upon Hoggins’s silence primarily related to his silence in the moments just prior to his being placed under arrest.
The officer’s testimony in the present case likewise related to the appellant’s exercise of his right to remain silent immediately before he was placed under arrest. It therefore fell within the Hoggins proscription.
Because we are unable to conclude that this constitutional violation was harmless beyond a reasonable doubt, the appellant’s conviction is reversed.
PADOVANO and ROBERTS, JJ., concur.
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Urbaniak v. State, 241 So. 3d 963 (Fla. 2d DCA 2018)…o give any postarrest statements to police "was more than 'fairly susceptible' of being interpreted as a comment on [the defendant's] right to remain silent" and concluding that the admission of this testimony was reversible error); Ash v. State, 995 So. 2d 1158, 1158 (Fla. 1st DCA 2008) (holding that an officer testifying that the defendant "replied that he's got nothing to say to me" when asked what had happened was a violation of the defendant's right to remain silent); Charton v. State, 716 So. 2d 80…
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Mack v. State, 58 So. 3d 354 (Fla. 1st DCA 2011)…t “post-arrest silence is not limited to silence which occurs after the arresting officer informs the defendant that he or she is under arrest” in that it “also includes silence which occurs at the time of arrest.” Id. at 767. See also Ash v. State, 995 So. 2d 1158 (Fla. 1st DCA 2008). In Ash, an officer testified that he went to the defendant’s apartment for the purpose of arresting him and asked the defendant if they could talk some more to which the defendant replied that he had nothing to say. Id. The def…
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Carlisle v. State, 164 So. 3d 69 (Fla. 2d DCA 2015)…. 3d 354, 355-56 (Fla. 1st DCA 2011) (holding that investigator’s testimony that appellant “said he’d rather talk to his attorney, and he didn’t want to talk anymore” was an impermissible comment on appellant’s right to remain silent); Ash v. State, 995 So. 2d 1158, 1158-59 (Fla. 1st DCA 2008) (holding that officer’s testimony that appellant “replied that he’s got nothing to say to me” was impermissible comment on his right to remain silent). Here, Car-lisle’s post-arrest, pre-Miranda statement that he would n…
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- State v. Hoggins, 718 So. 2d 761 (Fla. 1998)