Rehearing Denied Feb. 10, 2012.
James Marion Moorman, Public Defender, and Karen M. Kinney, Assistant Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.
Raymond Weldon Marston appeals his convictions and sentences for aggravated battery with great bodily harm, kidnapping, three counts of sexual battery using force causing injury, and attempted robbery. See §§ 784.045(1)(a)(1); 787.01(1)(a)(2); 794.011(3); 812.13(1), (2)(c), Fla. Stat. (2007). We affirm the convictions and sentences but write to discuss
Mr. Marston's prosecutorial misconduct claim.
During jury selection, the following exchange occurred:
[PROSECUTOR]:.... You can't hold it against Mr. Marston or his attorneys if they sit there and play dominoes the whole time. Do you understand that?
[VENIRE MEMBER]: Kind of. So you will be talking the whole time to prove that he's guilty?
[PROSECUTOR]: Exactly. Exactly. Because it is the State of Florida's burden and everybody has this right. You are presumed innocent until I prove that you are guilty.
So like I said, Mr. Marston can sit there and not say a word. He can read magazines. He could bring in a laptop and play on Facebook all day long if he wanted to, and you cannot hold that against him. Do you understand? Does everyone understand that?
And I touched upon Mr. Marston doesn't have to say a word. He doesn't have to say a single word this whole trial. You may not even hear [Mr. Marston's] voice at ...