We, therefore, find no error in the State's cross-examination or closing argument. The dissent relies on Hoggins, Smith, Robbins and Hosper v. State, 513 So.2d 234, 235-37 (Fla. 3d DCA 1987), in concluding that the inquiry by the State resulted in a comment upon Diaz's right to remain silent. However, in none of the cases relied upon, does the defendant, himself, provide an explanation of why he did not provide additional information to law enforcement prior to the State's questioning of the defendant, as occurred in the instant case.
Our cases have made clear that courts must prohibit all evidence or argument that is fairly susceptible of being interpreted by the jury as a comment on the right of silence. E.g., State v. DiGuilio, 491 So.2d 1129 (Fla. 1986); State v. Kinchen, 490 So.2d 21 (Fla. 1985); Starr v. State, 518 So.2d 1389 (Fla. 4th DCA 1988); Hosper v. State, 513 So.2d 234 (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."
[e.s.] 718 So.2d at 769. Similarly, in Hosper v. State, 513 So.2d 234 (Fla. 3d DCA 1987) — cited with approval in Hoggins, 718 So.2d at 769 — the Third District held: "The prosecution is not permitted to comment upon a defendant's failure to offer [e.s.] an exculpatory statement prior to trial, since this would amount to a comment upon the defendant's right to remain silent." 513 So.2d at 235; see also Weiss v. State, 341 So.2d 528 (Fla. 3d DCA 1977) (same holding as regards questioning of defendant concerning his failure to give exculpatory explanation at any time prior to his trial testimony).
[e.s.] 718 So.2d at 769. Similarly, in Hosper v. State, 513 So.2d 234 (Fla. 3d DCA 1987) — cited with approval in Hoggins, 718 So.2d at 769 — the Third District held: "The prosecution is not permitted to comment upon a defendant's failure to offer [e.s.] an exculpatory statement prior to trial, since this would amount to a comment upon the defendant's right to remain silent." 513 So.2d at 235; see also Weiss v. State, 341 So.2d 528 (Fla. 3d DCA 1977) (same holding as regards questioning of defendant concerning his failure to give exculpatory explanation at any time prior to his trial testimony).
Cf. State v. Smith, 573 So.2d 306 (Fla. 1990). As earlier stated in Hosper v. State, 513 So.2d 234 (Fla. 3d DCA 1987), subsequently quoted with approval by the supreme court in Smith: 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.
Accordingly, "[t]he 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." Id. (quoting Hosper v. State, 513 So.2d 234, 235 (Fla. 3d DCA 1987) ). However, it is not impermissible for the State to impeach the defendant with his voluntary prearrest statements.
In addition to making clear that state constitutional law prohibited the use of postarrest silence, the courts made clear that this prohibition extended to all evidence and argument, including impeachment evidence and argument, that was fairly susceptible of being interpreted by the jury as a comment on silence. See State v. Smith, 573 So.2d 306, 317 (Fla. 1990) (quoting Hosper v. State, 513 So.2d 234, 235 (Fla. 3d DCA 1987), which found impeachment with a defendant's pretrial silence amounted to an impermissible comment on the defendant's right to remain silent). Thus, the courts recognized that by taking the stand a defendant did not waive his or her right to silence at the time of arrest.
In 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 alsoBurgess 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."). The 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?"
We reverse the appellant's conviction because we are unable to say that the prosecutor's improper comment upon the appellant's post-arrest silence was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986); Sharp v. State, 605 So.2d 146, (Fla. 1st DCA 1992); Fundora v. State, 634 So.2d 255 (Fla. 3d DCA 1994); J.D. v. State, 553 So.2d 1317 (Fla. 3d DCA 1989); Wood v. State, 552 So.2d 235 (Fla. 4th DCA 1989); Nixon v. State, 536 So.2d 391 (Fla. 4th DCA 1989); Hosper v. State, 513 So.2d 234 (Fla. 3d DCA 1987). The other arguments presented by the appellant are without merit or are rendered moot by the disposition.
The objection was overruled and the motion denied. As a matter of state constitutional law, it is impermissible to comment on defendant's post-arrest silence whether or not that silence is induced by Miranda warnings. Lee v. State, 422 So.2d 928 (Fla. 3d DCA 1982), review denied, 431 So.2d 989 (Fla. 1983); see Webb v. State, 347 So.2d 1054 (Fla. 3d DCA), cert. denied, 354 So.2d 986 (Fla. 1977); see also Hosper v. State, 513 So.2d 234 (Fla.3d DCA 1987); Weiss v. State, 341 So.2d 528 (Fla. 3d DCA 1977). The participation of the uniformed Miami police officer constituted state action in Hick's apprehension and detention; thus, triggering his right to keep his silence after arrest from the jury.