FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Sumter County, Daniel B. Merritt,
S. Purdy, Public Defender, and Edward J. Weiss, Assistant
Public Defender, Daytona Beach, for Appellant.
Moody, Attorney General, Tallahassee, and Douglas T. Squire,
Assistant Attorney General, Daytona Beach, for Appellee.
Turner was convicted of selling methamphetamine, possessing
methamphetamine with the intent to sell, and unlawfully using
a two-way communication device. On appeal, he argues that the
trial court erred in disallowing his closing argument that
the lack of fingerprint evidence relating to the baggie
containing the methamphetamine constituted reasonable doubt.
We agree and reverse.
events leading to Turner's charges occurred in a model
shed outside of a Lowe's Home Improvement store in Sumter
County. The Sumter County Sheriff's Department utilized a
confidential informant, accompanied by an undercover deputy,
to conduct a drug transaction with Turner. The confidential
informant and undercover deputy parked at Lowe's, and
Turner approached the vehicle window. The confidential
informant exited the vehicle and accompanied Turner into the
the confidential informant wore a hidden camera, the video
admitted into evidence does not show Turner possessing the
methamphetamine or making an
exchange for money. The deputies who testified did not see
Turner in possession of the methamphetamine. Further, the
State did not present fingerprint evidence relating to the
baggie containing the methamphetamine. Evidence of
Turner's guilt was comprised mostly of the testimony of
the paid confidential informant. We recognize, however, that
the video casts doubt on Turner's testimony that the
confidential informant planted the methamphetamine in the
shed rafters earlier that day and retrieved those drugs upon
entering the shed.
closing argument, Turner asserted that had the Florida
Department of Law Enforcement processed the baggie containing
the methamphetamine for fingerprints, his fingerprints would
not have been on the baggie. The State objected, arguing that
there was no evidence supporting Turner's claim. In a
bench conference, Turner clarified that he intended to argue
that the lack of fingerprint evidence was a factor the jury
could consider in determining whether the State met its
burden of proof. The trial court sustained the State's
objection, reasoning, "I don't see your nexus of how
you've shown that fingerprints are something that is
required for them to prove their case."
asserts that the trial court erred in disallowing his
argument that the lack of fingerprint evidence constituted
reasonable doubt. We find that the trial court properly
sustained the State's initial objection because
Turner's argument that his fingerprints would not have
been on the baggie was unsupported by the
evidence. Nevertheless, we agree with
Turner that the trial court erred in disallowing his argument
after he clarified his intent to address the lack of
fingerprint evidence in terms of reasonable doubt.
jury was instructed during Turner's trial, "[a]
reasonable doubt as to the guilt of the defendant may arise
from the evidence, conflict in the evidence, or lack of
evidence." Fla. Std. Jury Instr. (Crim.) 3.7. A
defendant is entitled to highlight the State's lack of
evidence-either the nonexistence of fingerprints or the
failure to attempt to obtain fingerprints-as reasonable
doubt. See Starr v. State, 518 So.2d 1389,
1391–92 (Fla. 4th DCA 1988) (noting that trial court
erred in sustaining objection to defendant's argument
that state failed to prove defendant's fingerprints were
on baggie containing drugs because "[a] reasonable doubt
is often created by the lack of evidence of guilt and, thus,
comment on the absence of evidence on an issue pointing to
guilt is fair and proper comment"). The State often
presents evidence of the virtual impossibility of obtaining
fingerprints from small baggies in drug-related trials. It
elected not to do so in this case. Turner was entitled to
argue that the State's lack of fingerprint evidence
constituted reasonable doubt. The trial court erred in
denying Turner the opportunity to present that argument.
we conclude that based on limited evidence that Turner
possessed the methamphetamine, the error was not harmless
beyond a reasonable doubt. See State v. DiGuilio,
491 So.2d 1129 (Fla. 1986); cf. Lena v. State, 901
So.2d 227, 233 (Fla. 3d DCA 2005) (applying harmless error
test when trial court improperly sustained state's
objection during defense's closing argument).
Accordingly, we reverse and remand for a new trial.
and REMANDED for a new trial.
GROSSHANS, J, and JACOBUS, BW, ...