Third District Court of Appeal
State of Florida
Opinion filed November 22, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-940
Lower Tribunal No. 13-24416
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Schmertz Pierre-Louis Jr.,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Rodolfo A.
Ruiz, Judge.
Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant
Public Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant
Attorney General, for appellee.
Before ROTHENBERG, C.J., and SUAREZ and EMAS, JJ.
EMAS, J.
Following a jury trial on the charge of second-degree murder, Schmertz
Pierre-Louis, Jr. was convicted of manslaughter and sentenced to thirty years’ state
prison followed by ten years’ probation.
On appeal, Pierre-Louis, Jr. asserts four claims of error during closing
argument. We affirm, and write to address one of those claims.1
Pierre-Louis, Jr. contends that, during closing argument, the State
improperly commented on his right not to testify at trial. Appellant relies for this
contention upon the following passage in the State’s rebuttal closing:
PROSECUTOR: [Defense counsel] says that paying to stay at a
hotel is not against the law. Paying to change your
clothes and put clothes on is not against the law.
Dreadlocks are not against the law. Cutting your
dreadlocks off is not against the law.
DEFENSE: Objection, Your Honor. Motion.
PROSECUTOR: Shooting somebody is. He is not on the stand
because he paid for a hotel room.
DEFENSE: Objection. Motion.
COURT: Overruled.
(Emphasis added.)
A criminal accused has a constitutional right not to testify in his trial. U.S.
Const., Amend. V; Art. I, § 9, Fla. Const. Therefore, “any comment on, or which
1 We affirm as to the remaining three claims (improper bolstering of a witness,
misstatement of the evidence, and argument as to consciousness of guilt) without
further discussion.
2
is fairly susceptible of being interpreted as referring to, a defendant’s failure to
testify is error and is strongly discouraged.” State v. Marshall,
476 So. 2d 150, 153
(Fla. 1985). See also Fla. R. Crim. P. 3.250 (entitled “Accused as Witness” and
providing: “In all criminal prosecutions the accused may choose to be sworn as a
witness in the accused's own behalf and shall in that case be subject to examination
as other witnesses, but no accused person shall be compelled to give testimony
against himself or herself, nor shall any prosecuting attorney be permitted before
the jury or court to comment on the failure of the accused to testify in his or her
own behalf”).
However, a more expansive review of the transcript reveals that the
prosecutor was not attempting to point out why the defendant was not “on the
stand,” but instead was arguing why the defendant was on trial.
The defense, during its closing, argued that the State was improperly relying
upon innocent conduct (e.g., changing his clothes and cutting his dreadlocks) to
prove its case. The defense argued that this conduct was not illegal and should not
be relied upon as evidence of guilt. The State in its rebuttal was responding to this
defense argument. Here is a more complete excerpt of the State’s rebuttal
argument:
PROSECUTOR: [Defense counsel] says that paying to stay at a
hotel is not against the law. Paying to change your
clothes and put clothes on is not against the law.
3
Dreadlocks are not against the law. Cutting your
dreadlocks off is not against the law.
DEFENSE: Objection, Your Honor. Motion.
PROSECUTOR: Shooting somebody is. He is not on the stand
because he paid for a hotel room.
DEFENSE: Objection. Motion.
COURT: Overruled.
PROSECUTOR: He is not sitting here as a defendant because he
paid for a hotel room. He is not sitting here before
you because he changed his clothes. He’s sitting
here before you because he shot and killed [the
victim].
(Emphasis added.)
Even if the trial court erred in overruling the initial objection, we conclude
that such error was nevertheless rendered harmless by the State’s immediate
corrective action, telling the jury that the defendant was not “sitting here” because
of innocent conduct, but rather was “sitting here” because of the act in shooting
and killing the victim. Under these circumstances, the prosecutor’s isolated slip of
the tongue,2 followed by an immediate correction, was not fairly susceptible of
being interpreted by the jury as a comment on the defendant’s failure to testify.
2 We note that the statement, “[h]e is not on the stand because he paid for a hotel
room,” does not even make sense, and the only reasonable conclusion, under the
circumstances and in light of the prosecutor’s immediate correction, is that the
prosecutor simply misspoke and intended to say “[h]e is not on trial because he
paid for a hotel room.” The trial court reached this very conclusion in denying the
defense’s motion for mistrial following the conclusion of the closing arguments.
4
We therefore conclude that any error in overruling the initial objection was
harmless beyond a reasonable doubt. State v. DiGuilio,
491 So. 2d 1129 (Fla.
1986).
Affirmed.
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