JULISSA ARGUELLO

v.

STATE OF FLORIDA

BLOCH, J.

\ This matter is on appeal from a conviction entered after a jury trial for driving under the influence of alcohol. For the reasons stated below we reverse the conviction and remand for a new trial. On September 20, 2014, Officers Polanco and Obas were dispatched to the scene of an automobile crash. When the officers arrived at the scene, Officer Polanco observed an overturned vehicle and fire rescue personnel attending to Defendant, Julissa Arguello’s (“Arguello”) leg or foot. As a result of the crash, an FPL pole housing a street light had been knocked over. At trial, Officer Polanco testified that Arguello turned towards him and stated that another vehicle slammed into her vehicle. In addition, [*2] Officer Polanco claimed that Arguello pointed towards the bulb of the downed light pole and indicated that the light bulb, still connected to the pole, was part of the vehicle that hit her. Based on his lay observations, Officer Polanco stated that there were no other vehicle parts, skid marks, or debris that would be consistent with another vehicle being involved. While interacting with Arguello, Officer Polanco stated that he got the distinct smell of alcohol emitting from her breath. Her eyes were bloodshot, watery, and red. Further, he testified that Arguello was unbalanced, possibly due to her foot injury. Officer Obas could not recall if he smelled alcohol on Arguello’s breath or if her eyes were red, but testified that her speech was slurred. Both officers were questioned at trial about Arguello’s alleged head injury. Officer Polanco testified that Arguello did not show any signs of a concussion or complain of any injuries to her head. Additionally, Officer Obas testified that he did not see any profound manifestations of a concussion. Officer Rosemond, a Driving Under the Influence (DUI) Task Force officer who was patrolling the area, arrived on the scene. After being briefed by Officer Polanco and observing Arguello for about two minutes, Officer Rosemond had Arguello perform field sobriety exercises. Arguello did not follow the instructions given by Officer Rosemond. At trial, Officer Rosemond testified that Arguello could not perform the rest ofthe field sobriety exercises due to balancing issues. Based on Arguello’s performance on the field sobriety exercises, she was placed under arrest for DUI. Officer Rosemond transported Arguello to the North Police Station to provide a breath sample. Arguello was read the “implied consent” form but refused to submit to a breath sample. At the same time, the lntoxilyzer (which is used to take and analyze a breath sample for alcohol content) was malfunctioning. Because of the malfunction, Officer Rosemond could not press the machine’s “refusal” button and thereby print out an affidavit to memorialize that Arguello had refused to provide a breath sample. Thereafter, Officer Rosemond transported Arguello to the South Police Station. However, prior to leaving the North Police Station, Arguello’s foot laceration again opened requiring treatment. After [*3] Arguello was medically cleared she was transported to the South Police Station where she again refused to provide a breath sample. Arguello was charged with DUI. Arguello asserted three grounds on appeal, all stemming from the State’s comments during closing arguments. We reverse on the basis of the first ground, namely, that the State impennissibly shifted the burden ofproof by arguing that Arguello failed to demonstrate that she was not impaired.‘ In closing the prosecutor made the following argument: [STATE]: . . . And knowing this that she would lose her license for 12 months, she refused to provide a [breath] sample. If it was just a concussion, if it was just an accident that someone else had crashed in to her, then why not -- if have you (sic) nothing to lose, demonstrate thatyou are not impaired. (emphasis added). Defense counsel objected on the basis of “burden shifting,” but the trial court overruled the objection. While we are cognizant that the State may comment on a defendant’s consciousness of guilt, in this case the State went further and impermissibiy shifted the burden ofproof to Arguello by suggesting that she must demonstrate that she was not impaired. This comment suggested that Arguello carry the burden of introducing evidence. In Jackson v. State, 575 So. 2d 181, 188 (Fla. 1991), the Florida Supreme Court determined that: [i]t is well settled that due process requires the state to prove every element of a crime beyond a reasonable doubt, and that a defendant has no obligation to present witnesses. Accordingly, the state cannot comment on a defendant's failure to produce evidence to refute an element ofthe crime, because doing so could erroneously lead thejury to believe that the defendant carried the burden ofintroducing evidence. (emphasis added); see also Morris v. State, 988 So. 2d 120,123 (Fla. 5th DCA 2008) (determining that the prosecutor violated the defendant’s Fifth Amendment rights when he improperly shifted the burden of proof by arguing that an innocent person would volunteer to take a breath test to prove his or her innocence); Hurtado v. State, 20 Fla. L. Weekly Supp. 763a (Fla. llth Cir. Ct. May 1, 2013) (holding that ' Arguello further argued that the prosecutor improperly denigrated the theory of defense by arguing that Arguello’s injuries and possible concussion were a distraction, and also that the prosecutor improperly bolstered the officers’ testimony by suggesting that the officers were honest and testified truthfully. Without extended discussion, we do not find the prosecutor’s comments, many of which went without objection, rise to the level ofimpropriety as expressed under the applicable case law. . ‘ [*4] the trial court erred by failing to sustain the objection to the State’s comment that “the Defendant had a chance to prove her innocence -»- ...When she was offered a breath and refused”). In the instant matter, we find that the trial court erred when it failed to sustain defense counsel’s objection to the comment that Arguello must demonstrate that she was not impaired. In light of this error, we apply the harmless error test. The question is whether there is a reasonable possibility that the error affected the verdict. State v. DiGuili0, 491 So. 2d 1129, 1139 (Fla. 1986). DiGuilio noted that “if the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error by definition is harmful.” Id. On appeal, the State contends that even if the comments were inappropriate, the cumulative effect of the comments in comparison to the totality of the evidence did not deprive Arguello of a fair trial, materially contribute to her conviction, be so harmful or fundamentally tainted to require a new trial, or be so inflammatory that it might have influenced the jury to reach a more severe verdict. We have carefully considered the record and disagree. Under DiGuili0, the harmless error test places the burden on the State to prove a beyond a reasonable doubt that the error complained of did not contribute to the verdict. The State has not met that burden here. Though in the aggregate the State’s evidence was sufficient to sustain a guilty verdict, most of that evidence was also capable of innocuous interpretation or rejection by the jury. For example, as some of the testimony established: Arguello’s lack of balance could have been due to her foot injury; her red and bloodshot eyes might have been caused by crying or from debris from her car’s airbag’s deployment; and while one of the responding officers sensed the odor of alcohol, the other did not; even Arguello’s outlandish identification of a light pole as belonging to a vehicle that hit her could have been attributed by the jury to her post-accident disorientation and possible concussion. While we, and the jury, after considering all of the evidence (including Arguello’s refusal to be tested), may have had little difficulty resolving the asserted ambiguities against Arguello, we at the same time cannot say beyond a reasonable doubt that none of the jurors, instead of going through the process of sorting the evidence out for Iill e l [*5] pawl? Ji~MdRPr§1_v::_ _ . Q7”?/A themselves, simply indulged in the State’s tempting suggestion to ask why the Defendant didn’t do that herself, by “demonstrating that she was not impaired.” When the State commented that Arguello failed to “demonstrate” her innocence, there is a reasonable possibility that the error affected the verdict. Accordingly, we reverse and remand for a new trial. REVERSED and REMANDED. ”"T‘ 1::.Z'i77-'3W":: ":1 I (MU Y and TINKLER-MEN,VD_gE‘“Z, J.I., concur). it it = ll, ,t 2/ i i . it ‘I

MARISA TINKLER-MENDEZI

JA ON BLOCH

_.>’ A’

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