The Florida Supreme Court Continues it's Commitment to Protect the Fifth Amendment Right Against self incrimination.
In the case of Ventura v. State, 35 Fla. L. Weekly S117a, decided February 18, 2010, the Florida Supreme Court issued an important decision that reiterates the importance of the Fifth Amendment right against self incrimination and confirms a standard of review which ensures that the right is given the maximum protection on appeal.
During the Ventura trial, the detective who made the arrest commented on the defendant's silence. Those comments by the detective were, "Along with the victims, the defendant's [sic] wouldn't give any statements." The detective later testified, "Yes. The suspects were in custody and the defendant then declined to make statements."
The case was initially appealed to the Third District Court of Appeal. The Third District Court recognized that the detective's comments were a violation of the defendant's constitutional right to remain silent by commenting thereon to the jury. The court said that the error was harmless beyond a reasonable doubt because the evidence of guilt was overwhelming. See Ventura v. State, 973 So. 2d 634, 637 (Fla. 3d DCA 2008).
The Supreme Court soundly rejected as improper the District Court of Appeal ruling of no harmless error because the evidence of guilt was overwhelming. The Supreme Court noted that comments on a defendant's silence are high risk errors as recognized by the United States Supreme Court in Chapman v. California, 386 U.S. 18 (1967) and present a substantial likelihood that such comments violate a right to a fair trial by influencing the jury verdict.
The court noted that Florida recognizes that commenting on the silence of an accused is not a viable strategy for obtaining convictions and that any comment either direct or indirect by anyone at trial, is a constitutional error that must be avoided.
The Florida Supreme Court in Ventura, discussed the long line of cases which hold that harmless error analysis must not become a device whereby the appellate court substitutes itself for the jury and by excluding the impermissible evidence, examines the remaining permissible evidence and determines that the evidence of guilt is sufficient or even overwhelming. The court in citing to its earlier decision in DiGuilio v. State, 491 So. 2d 1129, 1139 (Fla. 1986) stated, "Overwhelming evidence of guilt does not negate the fact that an error that constituted a substantial part of the prosecution's case may have played a substantial part in the jury's deliberation and thus contributed to the actual verdict reached. . . ."
The Supreme Court reiterated that the harmless error test places the burden on the state as the beneficiary of the error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or alternatively, that there was no reasonable possibility that the error contributed to the conviction.
The court in this case reiterated that the test for determining whether reversible error occurred is not a sufficiency of the evidence, not a correct result, not that this conduct was clearly wrong, not that there was substantial evidence, clear and convincing evidence or even overwhelming evidence of guilt. All of these are devices by which the appellate court substitutes itself for the trier of fact by simply weighing the evidence. In again citing to DiGuilio at 1136, the court stated, "[T]he focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show that the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful."
The Florida Supreme Court stressed that the standard of review puts the burden on the state to convince the appellate court that the record demonstrates beyond a reasonable doubt that the error did not contribute to the verdict.
This case is an example of a continuing problem in trial courts wherein the prosecution elicits either intentionally or through volunteered statements of police officers, comments that infringe upon the defendant's right not to incriminate himself. The Supreme Court's decision in Ventura, while it cites to past cases, is a strong reminder that this is a continuing problem not only in the trial courts but in the appellate courts as well. District courts of appeal commit error by failing to use what amounts to the most stringent standard of review to protect the Fifth Amendment.
