FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Manatee County; Hunter W. Carroll,
L. Dimmig, II, Public Defender, and Matthew J. Salvia,
Assistant Public Defender, Bartow, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Johnny T.
Salgado, Assistant Attorney General, Tampa, for Appellee.
Urbaniak appeals his convictions and sentences for one count
of battery and one count of attempted battery following a
jury trial. We affirm Urbaniak's judgment and sentences
but write to address one of his arguments on appeal and the
State's response to it.
enforcement and EMS were dispatched to Urbaniak's home
after receiving a 911 call from Urbaniak's sister. After
the responding police deputy interviewed the individuals at
the scene, he took Urbaniak into custody. Urbaniak argues
that the deputy improperly commented on his right to remain
silent when he testified on direct during the State's
case-in-chief that he "did make an attempt to interview
the defendant, but he was mute the whole time. He refused to
talk. . . . [H]e was just making some mumblings and refused
to talk." The deputy also testified, "I gave the
defendant an opportunity to speak with me but he refused, so
he was placed under arrest."
on a defendant's silence after arrest is prohibited by
the due process clause of the Florida Constitution. Art I,
§ 9, Fla. Const. "The standard for determining what
constitutes a comment on [postarrest] silence is fairly
liberal. 'If the comment is fairly susceptible of being
construed by the jury as a comment on the defendant's
exercise of his or her right to remain silent, it violates
the defendant's right to silence.' " Green
v. State, 27 So.3d 731, 735 (Fla. 2d DCA 2010) (quoting
State v. Hoggins, 718 So.2d 761, 769 (Fla. 1998));
see also State v. Smith, 573 So.2d 306, 317 (Fla.
1990) ("Our cases have made clear that courts must
prohibit all evidence or argument that is fairly susceptible
of being interpreted by the jury as a comment on the right of
State contends that the deputy's comments were "a
recounting of what happened between the deputy and Urbaniak
during [the] investigation rather than a comment on
appellant's right to remain silent." We are not
persuaded; the deputy's testimony that Urbaniak was
arrested after he failed to offer any explanation about what
had happened was certainly an impermissible comment on
Urbaniak's right to remain silent. See, e.g.,
State v. Horwitz, 191 So.3d 429, 445 (Fla. 2016)
(concluding that "[t]here [was] no question . . . that
the State directly commented on [the defendant's]
silence" when the State elicited testimony from officers
that the defendant "didn't answer" when asked
about what had happened immediately after the incident);
Parker v. State, 124 So.3d 1023, 1026 n.2 (Fla. 2d
DCA 2013) (explaining that a detective's response that
the defendant "just didn't answer the question"
was an improper comment on the defendant's right to
remain silent); Green, 27 So.3d at 736 (holding that
an officer's testimony that the defendant
"refused" to give any postarrest statements to
police "was more than 'fairly susceptible' of
being interpreted as a comment on [the defendant's] right
to remain silent" and concluding that the admission of
this testimony was reversible error); Ash v. State,
995 So.2d 1158, 1158 (Fla. 1st DCA 2008) (holding that an
officer testifying that the defendant "replied that
he's got nothing to say to me" when asked what had
happened was a violation of the defendant's right to
remain silent); Charton v. State, 716 So.2d 803, 806
(Fla. 4th DCA 1998) (affirming that comments regarding a
defendant's refusal "to explain his presence and
conduct" prior to arrest violated the defendant's
right to remain silent); Carr v. State, 561 So.2d
617, 618-19 (Fla. 5th DCA 1990) (concluding that an officer
testifying that when he asked the defendant what happened
after arriving at the scene of a car accident, the defendant
"carried on no dialogue and I got no answer"
violated the defendant's right to remain silent).
case, the deputy specifically referred to Urbaniak's
prearrest silence, which invokes a slightly different
constitutional standard for admission than comment on
postarrest silence. Although the use of a defendant's
prearrest silence is not precluded in federal court unless
the defendant first invoked his right to remain silent,
Salinas v. Texas, 570 U.S. 178, 191 (2013)
(plurality opinion) ("Before petitioner could rely on
the privilege against self-incrimination, he was required to
invoke it."), the issue is more nuanced under the
Florida Constitution, Horwitz, 191 So.3d at 439
("[T]he privilege against self-incrimination provided in
the Florida Constitution offers more protection than
the right provided in the Fifth Amendment to the United
States Constitution."). Under the Florida Constitution,
the State may not admit a defendant's prearrest,
pre-Mirandasilence as substantive evidence of guilt or
when the defendant fails to testify. Horwitz, 191
So.3d at 442 ("If [a defendant] could not be made a
self-accusing witness by coerced answers, he should not be
made a witness against himself by unspoken assumed
answers." (alteration in original) (quoting
Commonwealth v. Molina, 104 A.3d 430, 450 (Pa.
2014))). However, prearrest, pre-Miranda silence may
be used to impeach a defendant when he testifies at trial,
"only if the silence was inconsistent with the
defendant's testimony at trial." Id. at 440
(emphasis omitted); see also Hoggins, 718 So.2d at
770 n.11. "If no inconsistency exists, then the silence
lacks probative value and is inadmissible."
Horwitz, 191 So.3d at 442 (quoting Hoggins,
718 So.2d at 766). Because the State admitted the
deputy's testimony during its case-in-chief, there is no
plausible argument in this case that the testimony was
offered to impeach Urbaniak's trial testimony.
did not object to either statement from the deputy at trial.
Therefore, our review is for fundamental error. See F.B.
v. State, 852 So.2d 226, 229 (Fla. 2003). "[T]o be
of such fundamental nature as to justify a reversal in the
absence of timely objection the error must reach down into
the validity of the trial itself to the extent that a verdict
of guilty could not have been obtained without the assistance
of the alleged error." Id. (quoting Brown
v. State, 124 So.2d 481, 484 (Fla. 1960)). Here, the
record does not reflect that the State relied on
Urbaniak's silence as substantive evidence of his guilt.
The State did not refer to Urbaniak's silence during
cross-examination of Urbaniak or during closing. Because the
only reference to Urbaniak's silence was the isolated
testimony of the deputy, we cannot conclude that the improper
comment rose to the level of fundamental error in this case.
Therefore, we affirm his convictions and sentences. See
Gutierrez v. State, 731 So.2d 94, 95 (Fla. 4th DCA 1999)
("While an improper comment on a defendant's right
to remain silent may be constitutional error, it is not
considered fundamental error.").
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