Opinion
No. 90-1676.
November 20, 1991.
Appeal from the Circuit Court, Martin County, Paul B. Kanarek, J.
Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Carol Cobourn Asbury, Asst. Atty. Gen., West Palm Beach, for appellee.
The witness' comment at trial, concerning a spot in a tape recorded conversation between appellant and his codefendant, to the effect that appellant was not going to talk until he spoke to a lawyer, may well have been a comment on his right to remain silent. Nevertheless, considering the strong evidence of guilt, such error in this case was harmless applying the standard in State v. Diguilio, 491 So.2d 1129 (Fla. 1986).
GUNTHER and STONE, JJ., concur.
ANSTEAD, J., dissents in part with opinion.
I agree with the majority on all of the issues raised except that I would find reversible error in an improper comment at trial on the appellant's right to remain silent. Contrary to the state's agreement and the trial court's instruction, a police officer testified that he recorded appellant's statement to a codefendant that he, appellant, would invoke his right to remain silent and not talk to the police without first consulting a lawyer. The recording was made while the two were in police custody. There was a proper objection and motion for mistrial which were both denied. In my view, the episode constitutes reversible error under our decisions and those of the Supreme Court. State v. Kinchen, 490 So.2d 21 (Fla. 1985); Bernier v. State, 547 So.2d 306 (Fla. 4th DCA 1989). Further, under the circumstances of this case I do not believe we can find the error harmless. State v. DiGuilio, 491 So.2d 1129 (Fla. 1986).