Clark v. State

We have for review the decision of the District Court of Appeal, Fourth District, in Bostic v. State, 332 So.2d 349 (Fla. 4th DCA 1976), and the decision of the District Court of Appeal, Second District, in Clark v. State, 336 So.2d 468 (Fla. 2d DCA 1976), which conflict with each other. We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

We must determine whether a contemporaneous objection is necessary to preserve as a point on appeal an improper comment on a defendant’s exercise of his right to remain silent. We hold that a contemporaneous objection is necessary.

Bostic was convicted of possession of marijuana. At the time of his arrest, when he was advised of his Miranda rights, he asserted his right to remain silent. The arresting officers testified at trial that Bostic had chosen to remain silent. No objections to these statements and no motion for mistrial were made by defense counsel. Bostic appealed his conviction to the District Court of Appeal, Fourth District, on the basis that the comments on his silence constituted reversible error. The State conceded that the testimony of the officers was improper but contended that Bostic had waived his right to raise this error on appeal since he failed to object. Reversing the conviction and remanding for a new trial, the District Court held that a trial objection was not required and that, under the circumstances of this case, the testimony of the arresting officers as to Bostic’s choice to remain silent was harmful.

Clark was convicted of breaking and entering with intent to commit grand larceny. During the State’s case, an arresting officer purportedly commented on Clark’s exercise of his right to remain silent. No objection was made to this testimony, and no motion for mistrial was made. In affirming the conviction, the District Court of Appeal, Second District, analyzed federal .and Florida cases relating to harmless error and the contemporaneous objection rule and concluded that the interests of justice would not be served by the adoption of an absolute rule that would allow the defendant to object for the first time on appeal. Reciting that not all errors of constitutional dimension are fundamental, the District Court found that the admission of the testimony in Clark’s case did not amount to fundamental error and affirmed the judgment of conviction.

The Fifth Amendment to the Constitution of the United States provides:

No person . . . shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; .

The Supreme Court of the United States, in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), construed this right to mean that the prosecution may not use at trial the fact that the defendant claimed his privilege to remain .silent in the face of accusation. Indisputably, evidence of post-arrest silence is improper because it violates the defendant’s right against self-incrimination. If properly preserved for appeal through objection, the admission of such testimony constitutes reversible error. Shannon v. State, 335 So.2d 5 (Fla.1976); Bennett v. State, 316 So.2d 41 (Fla.1975).

In the present cases, we must consider the effect of the defendant’s failure to object. This issue was not decided in Shannon, Bennett or Willinsky v. State, 360 So.2d 760 (Fla.1978), filed April 5, 1978, where timely objection had been made to the improper comments. In Bennett, we announced that the error complained of was of constitutional dimension and warranted reversal without consideration of harmless error, but we have consistently held that even constitutional errors, other than those constituting fundamental error, are waived unless timely raised in the trial court. Sanford v. Rubin, 231 So.2d 134 (Fla.1970). “Fundamental error,” which can be considered on appeal without objection in the lower court, is error which goes to the foundation of the case or goes to the merits of the cause of action. An improper comment on defendant’s exercise of his right to remain silent is constitutional error, but it is not fundamental error. Cf. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

The Supreme Court of the United States, in Chapman v. California, supra, declined to adopt a rule that the constitutional error of comment on silence should automatically require reversal of a conviction, as petitioners therein urged. The Supreme Court announced that the test to be applied in determining whether a federal constitutional error can be held harmless is whether the Court finds the error to be harmless beyond a reasonable doubt.

In Doyle v. Ohio, supra, wherein the Supreme Court held that it is unfair to allow defendant’s silence to be used to impeach an explanation given by him at trial, defense counsel made timely objections to the prosecutor’s questions, which objections were overruled by the trial court. The Supreme Court, however, did not preclude application of the harmless error doctrine since, in its conclusion, it emphasized that the State had not claimed that such use of petitioner’s silence for impeachment purposes in the circumstances of his case might have been harmless error.

This Court has long recognized the contemporaneous objection rule. The justification for such a rule was explained in State v. Jones, 204 So.2d 515 (Fla.1967), where, in reference to a previously recognized exception to the rule, we said:

At the present time all defendants in criminal trials who are unable to engage counsel are furnished counsel without charge. Application of the exception is no longer necessary to protect those charged with crime who may be ignorant of their rights. Their rights are now well guarded by defending counsel. Under these circumstances further application of the exception will contribute nothing to the administration of justice, but rather will tend to provoke censure of the judicial process as permitting “the use of loopholes, technicalities and delays in the law which frequently benefit rogues at the expense of decent members of society.”

The Court now recants the statement of the exception upon which respondent relies and henceforth will review challenged argument of prosecutors only when an objection is timely made.

More recently, in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the United States Supreme Court recognized the value of the contemporaneous objection rule, holding that the defendant’s failure to make timely objection to the admissibility of his inculpatory statement, without a showing of cause for noncompliance with the rule or actual prejudice, barred review of his Miranda claim through federal habeas corpus. The Court said:

A contemporaneous objection enables the record to be made with respect to the constitutional claim when the recollections of witnesses are freshest, not years later in a federal habeas proceeding. It enables the judge who observed the demeanor of those witnesses to make the factual determinations necessary to properly deciding the federal constitutional question. .

Finding that the Federal Constitution and the holdings of the United States Supreme Court do not mandate the adoption of an absolute rule requiring reversal in every case where there has been an improper comment on the defendant’s right to remain silent, and concluding that the application of the contemporaneous objection rule in this type of case will promote the administration of justice in the State of Florida, we determine that Bostic and Clark, because of their failure to object at trial, may not for the first time raise this issue on appeal. In reaching this decision, we hold the following:

1. Reversible error occurs in a jury trial when a prosecutor improperly comments upon or elicits an improper comment from a witness concerning the defendant’s exercise of his right to remain silent. Likewise, reversible error occurs when any state, defense or court witness in a jury trial spontaneously volunteers testimony concerning the defendant’s exercise of his right to remain silent.

2. In a non-jury trial, an improper comment concerning the defendant’s exercise of his right to remain silent is not necessarily reversible error, and it may be disregarded by the trial courts; however, it may serve as grounds for appropriate sanctions against the offending prosecutor or witness.

3. No error occurs when defense counsel comments upon or elicits testimony concerning the defendant’s exercise of his right to remain silent. The same is true if defense counsel were to improperly suggest to a friendly witness that he “spontaneously” comment on the defendant’s exercise of his right to remain silent so as to give him a mistrial. A defendant may not make or invite an improper comment and later seek reversal based on that comment.

4. When there is an improper comment, the defendant, if he is offended, has the obligation to object and to request a mistrial. If the defendant does not want a mistrial, he may waive his objection. The trial may then proceed, but he may not again raise that objection as a point on appeal. If the defendant fails to object or if, after having objected, he does not ask for a mistrial, his silence will be considered an implied waiver. Cf. Spenkelink v. State, 350 So.2d 85 (Fla.1977), cert. den. 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977). The important consideration is that the defendant retain primary control over the course to be followed in the event of such error. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976).

5. When an objection and motion for mistrial are made, the trial court must determine whether there was an improper comment on the defendant’s exercise of his right to remain silent. If the court finds that there was not, the objection should be overruled. In that event, the objection is preserved, and if the defendant is convicted, it may be raised as a point on appeal.

6. If the defendant, at the time the improper comment is made, does not move for mistrial, he cannot, after trial, in the event he is convicted, object for the first time on appeal. He will not be allowed to await the outcome of the trial with the expectation that, if he is found guilty, his conviction will be automatically reversed.

Accordingly, we uphold the result reached by the Second District in Clark and affirm the defendant’s conviction, and we quash the decision of the Fourth District in Bostic and affirm the defendant’s conviction.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG and HATCHETT, JJ., concur.

ADKINS, J., dissents with an opinion.

. It is not necessary to our disposition of Clark’s appeal to determine whether such testimony in fact constituted a comment on silence.