DANIEL D. LENZ, Appellant,
STATE OF FLORIDA, Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
St. Lucie County; Elizabeth A. Metzger, Judge; L.T. Case No.
Haughwout, Public Defender, and Marcy K. Allen, Special
Assistant Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for
his first conviction was reversed due to the admission of
improper evidence, Daniel Lenz, the defendant below, was
retried and found guilty of crimes involving a child victim.
He challenges his conviction and sentence of life
imprisonment, raising numerous issues, two of which we find
have merit. We agree with the defendant that the trial court
erred in overruling a defense objection to the
prosecutor's closing argument, which shifted the burden
of proof to the defendant. We also find that the trial court
erred in denying his peremptory strike of a prospective
the defendant was in jail awaiting trial, he spoke to his
wife (the victim's grandmother) and their telephone
conversations were recorded by jail authorities. During
closing argument at trial, the prosecutor played the
recording of the first phone call the defendant made to his
wife, and offered the following closing argument commentary:
And sometimes silence can be deafening. And in this case in
this jail call, I think his silence not to comfort her and
say, hey, this is a misunderstanding, I didn't do it on
purpose, I didn't have a lewd intent, something to that
effect, he's silent. I can't help but wonder what has
changed. Think about this. This is early on in the case, this
is the first jail call. What has changed over the three
years, what has changed? I'll tell you what's
changed. He's had three years to think about this.
He's had three years to think of his story and to explain
prosecutor then played a portion of a recording where the
defendant tells his wife he cannot talk about the case over
the phone, as "[t]hat can put yourself in
jeopardy." The prosecutor made the following statements
in conjunction with this recorded clip:
Really? And he was innocent. Why couldn't he talk about
the case? Why couldn't he get on the phone and say this
is a misunderstanding, why couldn't he say I was tricked
by the police, why couldn't he say PTSD kicked in, why
couldn't he say all that? That wouldn't put him in
jeopardy, not one bit. Not at all. He knows he's guilty,
that's why he doesn't want to talk about this case.
counsel objected, and argued that the statements constituted
burden shifting. The trial court overruled the objection:
"I mean obviously this is in evidence, but, you know,
he's allowed to comment on it. I don't see how
it's burden shifting. He's just pointing out that he
didn't say certain things."
compelled to once again remind prosecutors and defendants
alike that improper closing argument has no place in the
lexicon of criminal court trials and is, with a nominal
amount of reflection and trial preparation, easy to avoid. We
once again provide a refresher. We first recognize that
"[i]t is within the court's discretion to control
the comments made to a jury, and a court's ruling will be
sustained on review absent an abuse of discretion."
Salazar v. State, 991 So.2d 364, 377 (Fla. 2008)
(citation omitted). A burden-shifting comment is reviewed for
harmless error. See Paul v. State, 980 So.2d 1282,
1283 (Fla. 4th DCA 2008). "It is well settled that due
process requires the state to prove every element of a crime
beyond a reasonable doubt." Warmington v.
State, 149 So.3d 648, 652 (Fla. 2014) (citation
omitted). "For that reason, it is error for a prosecutor
to make statements that shift the burden of proof and invite
the jury to convict the defendant for some reason other than
that the State has proved its case beyond a reasonable
doubt." Id. (citation omitted). Thus, "the
state cannot comment on a defendant's failure to produce
evidence to refute an element of the crime, because doing so
could erroneously lead the jury to believe that the defendant
carried the burden of introducing evidence."
Id. (citation omitted). "Comments on silence
may also equate to burden-shifting comments[.]"
Gleason v. State, 188 So.3d 35, 38 (Fla. 4th DCA
Fifth District summarized the types of comments our courts
have held improperly shift the ...