FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Levy County. James T.
Thomas, Public Defender, and L. Allen Beard, Assistant Public
Defender, Tallahassee, for Appellant.
Jo Bondi, Attorney General, David Llanes, Assistant Attorney
General, Donna A. Gerace, Assistant Attorney General, and
Jason W. Rodriguez, Assistant Attorney General, Tallahassee,
Payne appeals his convictions and sentences for possession of
cannabis and possession of cocaine. We affirm, but write to
address two comments made during the State's closing
Payne was the passenger in a vehicle driving on a dirt road
at night when it was pulled over by Deputy Jeremy Dean.
Deputy Dean placed the driver in his patrol car and then
asked Payne to exit the vehicle and walk to the back of his
patrol car. After Deputy Dean asked if Payne had anything the
deputy should be aware of, Payne responded in the negative
and offered to be searched. After initially finding nothing,
Deputy Dean asked Payne to spread his legs, and a bag
containing cannabis and cocaine was subsequently found on the
Dean testified that he saw the bag fall from Payne's
pants onto the ground when Payne spread his legs. The defense
cross-examined the deputy as to his purported use of a
flashlight during the search, as his written reports and
deposition did not mention a flashlight. Deputy Dean also
testified that his patrol car's video camera was not
functioning at the time of the arrest, and that video of the
incident from his personal body camera was accidentally
deleted when he downloaded new computer software. Deputy Dean
stated that he never attempted to take fingerprints from the
bag of drugs found.
State also called a forensic chemist to testify, who
identified one of the substances recovered as cocaine. The
defense called no witnesses.
the State's initial closing statement, the prosecutor
discussed the elements necessary to convict Payne of
possession of cocaine, including the third element, that the
substance was in fact cocaine. After the prosecutor reviewed
the testimony of the forensic chemist, he concluded, "As
to that element the State has met its burden. And, in part,
the State would argue that you didn't hear any
contradictory testimony or evidence to rebut the fact."
The defense immediately asked to approach, and moved for a
mistrial during a sidebar conference, arguing that the
comment shifted the burden to Payne to prove that the
substance was not cocaine and constituted a comment on his
right to remain silent. The trial court denied the mistrial
motion, but at the request of the defense, gave a curative
instruction to the jury regarding the presumption of
innocence and Payne's right to remain silent.
prosecutor's statement was not improper. While using the
word "rebut" in this context is unwise, this poor
word choice does not overcome the general rule that a
prosecutor may properly highlight the lack of contradictory
evidence and state what conclusions the jury should make.
See Bell v. State, 108 So.3d 639, 647-48 (Fla.
2013). The State was free to review the forensic
chemist's testimony that the substance was cocaine, and
remind the jury that there was no evidence offered by the
defense to suggest that it was not. Regardless, had the
comment been improper, it was not "so prejudicial as to
vitiate the entire trial" for a mistrial to be
appropriate, especially in light of the curative instruction
given to the jury. England v. State, 940 So.2d 389,
402 (Fla. 2006).
Payne's closing arguments, the defense discussed the
omissions and inconsistencies in Deputy Dean's earlier
accounts of the incident compared to his testimony (e.g.,
whether he used a flashlight during the search), the absence
of any videotapes or recordings, the lack of fingerprints
taken from the drugs, and the dark conditions and dirt road
where the drugs were found. The defense attacked the