Opinion
No. 87-1016.
June 28, 1988.
Appeal from the Circuit Court, Dade County, Mary Ann MacKenzie, J.
Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Charles M. Fahlbusch, Asst. Atty. Gen., for appellee.
Before BASKIN and JORGENSON, JJ., and WARREN H. COBB, Associate Judge.
The defendant, Julio Alvarez, was convicted of possession of cocaine with intent to sell. At trial the prosecutor, in the presence of the jury, asked that the defendant take the stand during the state's case-in-chief. It was the prosecutor's contention that a reference by defense counsel during cross-examination of a state witness to a scar on the defendant's face constituted non-verbal testimony, thereby waiving the defendant's right against self-incrimination. The defense unsuccessfully moved for a mistrial.
Clearly, the prosecutor tried to compel testimony from the accused in rank violation of the fifth and fourteenth amendments to the United States Constitution. Cf. Macias v. State, 515 So.2d 206 (Fla. 1987). Under the facts of the instant case, denial of the motion for mistrial cannot be deemed harmless error. See State v. Di-Guilio, 491 So.2d 1129 (Fla. 1986).
REVERSED and REMANDED for new trial.