Opinion
No. 4D98-3754.
Opinion filed May 3, 2000.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Robert Carney, Judge; L.T. No. 96-23091 CF.
Richard L. Jorandby, Public Defender, and David J. McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
We affirm Rich's conviction and sentence for battery on a person over age 65, strong armed robbery, and burglary with a battery.
In our view, the state's argument, that evidence establishing the voluntariness of Rich's confession was uncontroverted, was not an improper comment on Rich's failure to testify, and the trial court did not err in so concluding.
At trial, the state introduced into evidence Rich's taped confession made to Detective Mink. On cross-examination, defense counsel questioned Mink on the issue of voluntariness of the statement, specifically that the detective interrogated Rich for four hours, spoon-fed the facts of the other robberies to him, and coerced him to confess by threatening to arrest his girlfriend.
Mink admitted telling Rich of the possibility that his girlfriend could be arrested; however, he consistently denied telling Rich that his girlfriend would not be arrested in order to obtain a confession.
Rich continued to challenge the voluntariness of his confession during closing, arguing that Mink had threatened to arrest Rich's girlfriend. During its closing, the state responded to Rich's attorney's claim, that the confession was coerced, by arguing
The thing to look at and determine is whether he was promised anything in order to give this confession, whether he was threatened at all in order to give this confession and the uncontroverted testimony in evidence in this case is that he was not.
The state further argued regarding the possibility that the girlfriend may be arrested:
I asked Detective Mink, did you ever tell the Defendant — did you ever tell him that Nikki would not be arrested if you confessed? No. That's uncontroverted.
We recognize that a prosecutor's comment that evidence is "uncontroverted" may constitute reversible error where the comment may be fairly interpreted as referring to a defendant's failure to testify. See Rodriguez v. State, 25 Fla. L. Weekly S89 (Fla. Feb. 3, 2000). In Rodriguez, the court recognized the conflict between comment on the uncontradicted nature of evidence, referring to the lack of evidence on a particular issue, permitted in White v. State, 377 So.2d 1149 (Fla. 1979), and reference to the uncontroverted nature of evidence where only the defendant possesses the information to contradict the government evidence, as described in State v. Marshall, 476 So.2d 150 (Fla. 1985), the latter being impermissible as fairly susceptible to interpretation as comment on the defendant's failure to testify. See Rodriguez, 25 Fla. L. Weekly at S91. Accordingly, the court receded fromWhite to the extent of conflict with Marshall. See Rodriguez, 25 Fla. L. Weekly at S91.
Nothing in Rodriguez indicates rejection of the holding inState v. Kinchen, 490 So.2d 21, 22 (Fla. 1985), that the "fairly susceptible" test uses the common dictionary definition of "fairly" as being "in a fair manner; justly; legitimately; plainly; clearly; distinctly." Id.
The court, in Rodriguez, however, acknowledged an exception for an invited response arising out of the context in which the prosecutor's statement is presented, see Barwick v. State, 660 So.2d 685 (Fla. 1995), and distinguished its facts from those inBarwick, stating:
Likewise, in Barwick v. State, 660 So.2d 685, 694 (Fla. 1995), we held that in the context presented, the prosecutor's statement, "what fact, what testimony, what anything have you heard as a result of him going down to that police station would create a reasonable doubt in your mind," was not a comment on the defendant's failure to testify, but a direction for the jury to consider the evidence presented. In that case defense counsel had suggested that an impropriety had taken place when Barwick had made his taped confession, and the State's argument was made to counter defense's argument on that subject.
Rodriguez, 25 Fla. L. Weekly at S91-92; see also Dufour v State, 495 So.2d 154 (Fla. 1986).
Here, the prosecutor's argument was an apparent reference to the failure of the defense attempt to impeach Detective Mink's testimony and was a permissible response to defense counsel's argument during closing. By continuing to argue that Mink threatened to arrest Rich's girlfriend and that the confession was coerced, Rich left the state little choice but to argue as it did.
We, therefore, hold that the state's argument falls within the exceptions recognized in Rodriguez. Furthermore, had the comment been improper, we deem any error harmless beyond a reasonable doubt. See generally State v. DiGuilio, 491 So.2d 1129 (Fla. 1986).
Accordingly, Rich's conviction and sentence are affirmed.
FARMER and SHAHOOD, JJ., concur.