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Conviction for firearm possession by convicted felon reversed because of police testimony that the defendant did not explain the possession

In West v. State, 36 Fla. L. Weekly D2103 (Fla. 1st DCA September 22, 2011) the police officer's testimony involved a comment as to the defendant's silence that was an improper comment on invoking the Fifth Amendment privilege against self incrimination.

The defendant testified at trial that the only reason he possessed the gun was that he took temporary possession of his mother's gun that she left in his home. The defendant was in the process of giving the gun to his father-in-law, when arrested.

The arresting police officer responded to the scene because of a call concerning a potential verbal disturbance between the defendant and his wife. In response to a question by the prosecutor as to whether the defendant ever told the officer what he was doing with the firearm the police officer said, "No sir."

Defense counsel made a timely objection that the testimony was improper because it was a reference on the defendant's right to remain silent. This was overruled by the court. The prosecution then asked the officer whether the defendant, before he was taken into custody, said that he was disposing of the firearm and the officer again answered, "No, sir."

On the appeal, the state argued that the question and answer was permissible because it pertained to the defendant's pre-arrest silence, and therefore, could be used to impeach the appellant's inconsistent testimony. The district court cited toState v. Hoggins, 718 So. 2d 761, 770 (Fla. 1998) which held in conformity with the United States Supreme Court that pre-arrest, pre-Miranda silence can be used to impeach a defendant.

The appellate court rejected the argument because, while the prosecutor's second question may have referred to pre-arrest, pre-Miranda silence, the prosecutor's first question was broad enough to encompass both pre and post-arrest silence and was therefore, improper. During closing, the prosecutor stated that the defendant never mentioned his defense on the day of arrest, which clearly took into account the post-arrest silence.

The seemingly simple question to the police officer as to whether the defendant offered an explanation of his conduct after the arrest or during the arrest is clearly a comment on the defendant's right to remain silent. This situation occurs frequently and therefore counsel should stay alert, as the defense lawyer did in this case.