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Dixon v. State

District Court of Appeal of Florida, Second District
Nov 24, 1993
627 So. 2d 19 (Fla. Dist. Ct. App. 1993)

Summary

recognizing that comments which are "fairly susceptible" of being interpreted as comments on silence are generally reversible error

Summary of this case from Kalivretenos v. State

Opinion

Case No. 91-04209.

October 15, 1993. Rehearing Denied November 24, 1993.

Appeal from the Circuit Court, Pinellas County, R. Grable Stoutamire, J.

Dee A. Setchel, St. Petersburg, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Dale E. Tarpley, Asst. Atty. Gen., Tampa, for appellee.


This appeal arises from a prosecution for aggravated child abuse. Both the appellant, Thomas W. Dixon, and the child's mother, Gloria Snell, were charged with the abuse of Snell's fourteen-month-old child. Snell pled guilty and testified on behalf of the state, placing the primary blame on Dixon. Dixon did not testify.

During closing argument, the prosecutor told the jury:

He was abused by both parents. But only one parent has come in here and admitted what she did was wrong. Only one parent has come in here and testified that she's going to prison.

Dixon's counsel made a timely objection and motion for mistrial. Without ruling on the objection, the trial court denied the motion.

In final summation, the prosecutor said:

The defendant has said he's not guilty. He's pled not guilty. He has not accepted his responsibility. He's not admitted his guilt.

The trial court overruled Dixon's objection and said to the prosecutor, "Go ahead."

Comments which are "fairly susceptible" of being interpreted as comments on a defendant's silence are reversible error unless the state can prove beyond a reasonable doubt that the error did not contribute to the verdict. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986). The prosecutor's remarks clearly implied that Dixon failed to testify on his own behalf. Since Dixon was the only one who could refute the testimony of the state's key witness, the child's mother, the remarks were prejudicial and constituted reversible error. See Abreu v. State, 511 So.2d 1111 (Fla. 2d DCA 1987). The state failed to prove beyond a reasonable doubt that the error did not contribute to the verdict; therefore, Dixon is entitled to a new trial.

Reversed and remanded for further proceedings.

RYDER, A.C.J., and ALTENBERND, J., concur.


Summaries of

Dixon v. State

District Court of Appeal of Florida, Second District
Nov 24, 1993
627 So. 2d 19 (Fla. Dist. Ct. App. 1993)

recognizing that comments which are "fairly susceptible" of being interpreted as comments on silence are generally reversible error

Summary of this case from Kalivretenos v. State
Case details for

Dixon v. State

Case Details

Full title:THOMAS W. DIXON, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Second District

Date published: Nov 24, 1993

Citations

627 So. 2d 19 (Fla. Dist. Ct. App. 1993)

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