final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Joseph George Marx, Judge; L.T. Case No.
Haughwout, Public Defender, and Claire Victoria Madill,
Assistant Public Defender, West Palm Beach, for appellant.
Moody, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for
Hopkins appeals his conviction for first degree murder with a
firearm. Finding merit in Appellant's argument that the
prosecutor made an impermissible comment on his post-arrest
right to remain silent, we reverse and remand for a new
trial. In light of our disposition, the remainder of
Appellant's arguments are moot and will not be discussed.
was arrested and charged with the murder of Jean Nesca
("the victim") after four eyewitnesses present at
the bar where the incident occurred identified Appellant as
the shooter. Although the testimony of the eyewitnesses
varied in detail, the consensus of the testimony established
that, on the night of the shooting, an individual with the
nickname "Meatball" got into a verbal altercation
with the victim. The altercation escalated and the individual
physically attacked the victim, rendering him unconscious.
Shortly thereafter, the individual pointed a firearm at the
still unconscious victim and fired one fatal shot. The murder
weapon was never found. When Appellant was arrested the
following day, he invoked his right to remain silent.
trial, Appellant took the stand in his own defense and
testified that he was at the bar hanging out with his friend
"Rico" when the shooting occurred. Appellant was
adamant that that he did not shoot the victim and that the
eyewitnesses misidentified him as the shooter. Appellant
further insisted that it was a coincidence that he and the
actual shooter shared the same nickname "Meatball."
During cross-examination, the prosecutor brought up Rico and
asked Appellant the following question: "And today in
2018 is the first time we're hearing about this guy
name[d] Rico?" Defense counsel objected, arguing that
the comment constituted an improper comment on
Appellant's right to remain silent. The State countered
that Appellant waived his right to remain silent by
testifying at trial and the court overruled the objection.
Florida law, the State is not permitted to "comment on a
defendant's postarrest silence" and this prohibition
applies "to all evidence and argument,
including impeachment evidence and argument, that [is] fairly
susceptible of being interpreted by the jury as a comment on
silence." State v. Hoggins, 718 So.2d 761, 769
(Fla. 1998); accord Ferrari v. State, 260 So.3d 295,
312 (Fla. 4th DCA 2018). Importantly, a defendant does not
waive this prohibition by electing to take the stand and
testify at trial. Hoggins, 718 So.2d at 769.
Court's holding in Shabazz v. State, 928 So.2d
1267 (Fla. 4th DCA 2006) is instructive. In that case, the
state presented testimony establishing that the defendant
shot at the victim first and the victim returned fire.
Id. at 1268. The defendant took the stand in his own
defense and, in contrast to the state's evidence,
testified that the victim opened fire first and that he
merely shot back in self-defense. Id. Notably, the
physical evidence was inconclusive as to who actually shot
first. Id. In an attempt to imply that his story was
recently fabricated, the prosecutor asked the defendant the
following question: "This is the first time you've
told your version of the events, right here to this jury,
you've never told it to anybody else before, have
you?" Id. Defense counsel objected and moved
for a mistrial based on the prosecutor's comment on
defendant's right to remain silent, and the court
overruled the objection and denied the motion. Id.
reversing the defendant's second degree murder
conviction, we held that "[t]he prosecutor's
question was fairly susceptible of being interpreted by the
jury as a comment on [defendant's] right to remain silent
and therefore was improper." Id.; see also
Burgess v. State, 644 So.2d 589, 592-93 (Fla. 4th DCA
1994) (improper for a prosecutor to make a comment
"showing that the defendant did not make a statement
until his testimony at trial"); Hosper v.
State, 513 So.2d 234, 235 (Fla. 3d DCA 1987) ("The
prosecution is not permitted to comment upon a
defendant's failure to offer an exculpatory statement
prior to trial, since this would amount to a comment upon the
defendant's right to remain silent.").
prosecutor's question in the instant case is
indistinguishable in substance from the question posed in
Shabazz. Similar to the prosecutor in
Shabazz who impermissibly asked the defendant
whether "[t]his is the first time you've told your
version of the events, right here to this jury," the
prosecutor in the instant case asked Appellant "[a]nd
today in 2018 is the first time we're hearing about this
guy name Rico?" This question, which was neither limited
in time nor scope, was broad enough to encompass both
pre-arrest and post-arrest silence and therefore fairly
susceptible of being interpreted as a comment on
Appellant's post-arrest right to remain silent. See
West v. State, 69 So.3d 1075, 1077 (Fla. 1st DCA 2011).
Moreover, although defense counsel only lodged a comment on
silence objection, the prosecutor's question also
improperly shifted the burden of proof by implying that
Appellant had the burden of offering an exculpatory statement
prior to trial. See Lenz v. State, 245 So.3d 795,
798-99 (Fla. 4th DCA 2018) (analyzing whether the
prosecutor's comment, which was only objected to on
burden-shifting grounds, also constituted an improper comment
on silence and reiterating that comment on silence objections
are generally indistinguishable from burden-shifting
light of the lack of physical evidence linking Appellant to
the murder and the conflict between Appellant's testimony
and the testimony of the eyewitnesses, it cannot be said that
the error was harmless. See Hoggins, 718 So.2d at
772 ("When the evidence against the defendant is not
clearly conclusive, comment on postarrest silence is not
harmless."); Shabazz, 928 So.2d at 1269
(holding that because the evidence against the defendant was
inconclusive and the case consisted of conflicting stories