State of Florida v. Donna Horwitz , 41 Fla. L. Weekly Supp. 211 ( 2016 )

Supreme Court of Florida
____________
No. SC15-348
____________
STATE OF FLORIDA,
Petitioner,
vs.
DONNA HORWITZ,
Respondent.
[May 5, 2016]
PARIENTE, J.
The issue before the Court is whether, under article I, section 9 of the
Florida Constitution and Florida evidentiary law, the State is precluded from using
a defendant’s pre-arrest, pre-Miranda1 silence as substantive evidence of guilt
when the defendant does not testify at trial. In Horwitz v. State, No. 4D13-336,
2015 WL 671136 (Fla. 4th DCA Feb. 18, 2015), the Fourth District Court of
Appeal concluded that the State could not use evidence of this silence as
1. Miranda v. Arizona, 384 U.S. 436 (1966).
substantive evidence of guilt and certified the following question to be of great
public importance:
WHETHER, UNDER FLORIDA LAW, THE STATE IS
PRECLUDED FROM INTRODUCING EVIDENCE OF A
DEFENDANT’S PRE-ARREST, PRE-MIRANDA SILENCE
WHERE THE DEFENDANT DOES NOT TESTIFY AT TRIAL?
Id. at *4. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
Donna Horwitz was convicted of first-degree murder with a firearm for the
death of her ex-husband, Lanny Horwitz. During the trial, the State repeatedly
elicited testimony from law enforcement witnesses that the defendant remained
silent following the murder but prior to her formal arrest. The State then
emphasized this silence in closing argument by arguing that the jury could consider
the defendant’s pre-arrest, pre-Miranda silence as evidence of her consciousness of
guilt.
The Fourth District, in reversing the conviction, held that under our
precedent in State v. Hoggins, 718 So. 2d 761 (Fla. 1998), because the defendant
did not testify at trial, the use of the defendant’s pre-arrest, pre-Miranda silence
was precluded as a matter of state constitutional and evidentiary law. Horwitz,
2015 WL 671136, at *4. We answer the certified question in the affirmative and
hold that the use of the defendant’s silence as substantive evidence of guilt violates
the defendant’s right against self-incrimination under the Florida Constitution.
And as a matter of Florida evidentiary law, the State is precluded from presenting
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evidence of a non-testifying defendant’s pre-arrest, pre-Miranda silence and from
arguing that silence is evidence of the defendant’s consciousness of guilt. On state
constitutional grounds, the use of a defendant’s silence as substantive evidence of
guilt when the defendant does not testify penalizes the defendant’s exercise of his
or her constitutional privilege against self-incrimination at trial. As a matter of
Florida evidentiary law, a defendant’s pre-arrest, pre-Miranda silence is generally
deemed ambiguous, and any probative value is “substantially outweighed by the
danger of unfair prejudice” pursuant to section 90.403, Florida Statutes (2013).
We therefore approve the decision of the Fourth District reversing Horwitz’s
conviction and remanding for a new trial.
BACKGROUND
Donna Horwitz was charged with first-degree murder with a firearm for the
2011 death of her ex-husband, Lanny Horwitz, in Jupiter, Florida. The Fourth
District set forth the facts:
On the morning of September 30, 2011, Lanny was shot multiple
times in the master bathroom of his home and was pronounced dead at
the scene.
[Horwitz] and Lanny had been divorced twice, but they were
living together again at the time of the murder. The couple’s 38-year-
old son, Radley, also lived in Lanny’s home.
Radley was the state’s key witness against [Horwitz]. There
was evidence that Radley had a troubled relationship with Lanny and
that he was a beneficiary on Lanny’s life insurance policy . . . .
Radley testified that in the months before the murder, [Horwitz]
complained several times that Lanny was being mean and nasty to her.
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[Horwitz] also made comments about the amount of time Lanny spent
with a female business associate.
The night before the murder, Lanny went to dinner with Radley
and told him that he was planning to travel to North Carolina with the
female business associate. Later that night, [Horwitz] mentioned to
Radley that she had seen Lanny’s luggage in the laundry room and
realized that he was leaving town. When Radley went to bed that
night, his parents were still awake.
Radley testified that he was awakened the next morning by the
sound of gunshots. When he heard the clicking sound of an empty
gun, he left his room to see what was happening. He saw [Horwitz]
running in and out of his parents’ bedroom, screaming his name. The
house alarm was triggered by the home’s glass break sensors. Radley
looked in the bathroom and saw his father on the floor. Radley went
back to [Horwitz], who then said, “He was so horrible.”
Meanwhile, the security guard at the community gate received
an alarm from the Horwitz residence at about 7:00 a.m. He
dispatched a security officer, Luis Garcia, to the home. Garcia arrived
at the home within about three minutes of receiving the call about the
alarm. Radley answered the door, appearing as though he had just
gotten out of bed. Garcia asked Radley if everything was okay, and
Radley responded, “I don’t know, my mom is screaming.” Garcia
entered the house and saw [Horwitz], who was very upset and was
screaming, “I think he’s dead.”
[Horwitz] pointed to the master bathroom area. Garcia looked
in the bathroom and saw Lanny unresponsive on the ground, but still
breathing. There was a gun in Lanny’s hand, pointed at an angle that
led Garcia to believe the wound may have been self-inflicted. Garcia
moved the gun away from Lanny’s body when he unsuccessfully tried
to resuscitate him. [Horwitz] told Garcia, “He said he would do this.”
However, Radley told Garcia that Lanny and [Horwitz] had been
fighting. Garcia escorted [Horwitz] and Radley out of the house.
Lanny was declared dead shortly thereafter.
[Horwitz] and Radley waited in Radley’s SUV. Radley
testified that he noticed several drops of blood on [Horwitz]’s foot.
Radley gave [Horwitz] some napkins and she wiped the blood drops
off. Radley did not initially mention this to police.
Officer [Kristi] Coleman arrived at the scene in response to a
call about a suicide. Coleman made contact with [Horwitz] and
Radley, who were sitting in the SUV. At the scene, [Horwitz]
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appeared to be in shock. Coleman asked [Horwitz] if she needed
anything, but [Horwitz] did not answer. Coleman then asked
[Horwitz] if she wanted a bottle of water. In response, [Horwitz] put
her fingers in her ears and said she couldn’t hear Coleman. Coleman
also asked [Horwitz] if she was in the room when the gun went off,
but [Horwitz] did not answer. A hearing specialist testified for the
defense that [Horwitz] had lost 48% of her ability to hear in each ear.
There was no evidence of forced entry into the home.
Authorities found a gun on the floor outside the master bathroom, and
another gun in a holster on the bedroom dresser. Bullet fragments
fired from both guns were found in the bathroom. Radley tested
negative for gun residue.
The gun on the floor near the bathroom had a mixture of
Lanny’s DNA and one other DNA source. Radley and the security
guards were excluded as the second DNA source, but [Horwitz] could
not be excluded. About one in fifteen Caucasian individuals (and an
even smaller proportion of individuals from other races) would exhibit
the same results as [Horwitz]. The gun on the dresser also contained
DNA from two people, but the test results were inconclusive as to
their identities.
A bloody finger smudge was found on the gate to the home.
The blood on the gate contained a mixture of two DNA profiles, one
from Lanny and the other from an unidentified source. [Horwitz],
Radley, and the security officers were all excluded as the second DNA
source on the gate.
A suitcase was found with [Horwitz]’s name on the tag. The
suitcase contained ammunition matching the type of ammunition fired
from the guns.
The police also located [Horwitz]’s journal, which contained
several references to Lanny’s relationship with his female business
associate. The last entry of the journal was dated September 5th,
2011. It mentioned that Lanny went to see the female associate, and
stated in relevant part:
“Another long day of lies, of being Mr. Meany. I
stayed home all day. Very tired.”
Horwitz, 2015 WL 671136, at *1-2.
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Approximately one week after the crime, Horwitz was formally arrested for
Lanny’s murder. The day after her arrest, she filed a notice invoking her right to
remain silent under the Fifth Amendment to the United States Constitution and
article I, section 9 of the Florida Constitution. Before trial, Horwitz moved to
suppress evidence of her pre-arrest, pre-Miranda silence and to prevent the State
from introducing evidence of Horwitz invoking her right to remain silent. The trial
court denied the motion.
Based on the trial court’s ruling, the State commented on Horwitz’s silence
at trial, starting with the opening statement: “[Officer Coleman] then says, were
you—were you in the room when he got shot? . . . And there was no answer.”
The State elicited testimony from Officer Coleman and a detective of the Jupiter
Police Department relating to Horwitz’s failure to respond to questions at the scene
immediately after her husband’s death. Officer Coleman testified that she initially
believed that she was responding to a suicide call, but in further questioning by the
State over objection by defense counsel, Officer Coleman testified as follows to
her interaction with Horwitz while Horwitz and Radley waited in Radley’s SUV:
Q: And when you first make any contact with her or make any
statement, what do you tell her—what do you ask her?
A: I asked her if she needed anything.
Q: And what is her response to you?
A: She didn’t answer me.
Q: And did she actually—did you ask again?
A: Yes. I asked her if she wanted a bottle of water.
Q: And what was her response?
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A: She put her fingers in her ears and went like this.
Q: And just for the record, you’re mouthing. She opened her
mouth—
A: Yes.
Q: —on more than one occasion?
A: (Nods head.)
Q: And did she make any statements?
A: No. At that point, I asked her if she was in the room when
the gun had gone off. And then I called for fire rescue because she
didn’t answer me.
....
Q: What was her demeanor like when you made contact with
her?
A: She seemed to appear to be in shock.
Q: Okay. Now you stated that she put, when you asked her if
she was all right, or asked her if she wanted a bottle of water, that she
put her hands—her fingers on her ears?
A: Yes.
Q: And was mouthing something?
A: Yes.
Q: Did she at any point tell—ask you—say to you that she
couldn’t hear you?
A: Yes. She said she couldn’t hear me.
Q: And was that, basically, around the same time that she
was—had her fingers to her ears?
A: Yes.
Q: And after—after she responded in that manner, did you then
ask her if she—did you then ask her another question?
A: Yes.
Q: And what was that question?
A: I asked her if she was in the room when the gun went off.
Q: And when you said this, were you looking directly at her?
A: Yes.
Q: And did she appear to be looking at you?
A: Yes.
Q: Did she respond in any way when you asked her if she was
in the room when the gun went off?
A: No.
Q: Do you continue to look at her and wait for a response?
A: Yes.
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Q: Did she respond—respond in any way to that question?
A: No.
(Emphasis added.)
Later in the trial, the State called Detective Eric Frank, the lead detective on
the case. He testified that he arrived on the scene shortly after Officer Coleman
and the other initial police officers had arrived, when Horwitz was still sitting
inside the SUV. Upon arriving at the scene, Detective Frank performed a
walkthrough of the house, upon which “it definitely raised concern that there was
something more” than a suicide. According to Detective Frank, based on his
observation of the physical evidence, law enforcement decided to obtain a search
warrant for the residence for “firearms, ammunition, blood, clothing, anything that
could relate to the scene as [they] initially saw it.”
During redirect examination of Detective Frank, the State asked questions
that implicated Horwitz’s privilege against self-incrimination:
Q: . . . You asked Radley more than once, did your mom say
what happened? Do you remember that?
A: Yes, I do.
Q: And, in fact, he was never able to relate to you anything
[Horwitz] said, was he?
A: No.
Q: And, in fact, as the lead detective, any statements at all
about—from [Horwitz] to Luis Garcia that a fourth or fifth person had
been in the house?
A: No.
Q: Any statement by [Horwitz] to Radley that a fourth or fifth
person was in the house?
A: No.
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Q: Any statement by [Horwitz] to anyone, anyone—
Defense counsel objected on the ground that the State was commenting on
Horwitz’s right to remain silent and moved for a mistrial. At sidebar, the trial
court acknowledged that the law related to the admissibility of pre-arrest, pre-
Miranda silence was unsettled and recognized that Horwitz was preserving the
issue, but overruled the objection.
The State then elicited additional testimony from Detective Frank related to
Horwitz’s pre-arrest, pre-Miranda silence:
Q: So Detective Frank, Donna Horwitz never told Luis Garcia
about anyone else being in the house, did she?
A: No, she did not.
Q: She never told Kristi Coleman about anyone else being in
the house?
A: No.
Q: Or Officer Mayernik?
A: No.
Q: Or David Cockrum?
A: No.
Q: And Donna Horwitz never said anything about what took
place in the house, to any of those people, did she?
A: No, she did not.
The defense’s theory was that Radley Horwitz or someone hired by Radley
committed the murder. To support this theory, defense counsel elicited testimony
from Mary Jane Garbo, the mother of Radley’s daughter, about a phone call
between her and Radley that morning, not long after the murder. Garbo testified
that Radley’s demeanor was nonchalant and that he seemed calm and collected.
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The defense also attacked the credibility of Radley, who testified at trial, and
suggested that Radley had a motive to commit the murder or hire someone to do so
and to subsequently cooperate with the State.
During closing argument, the State relied on the testimony of Officer
Coleman and Detective Frank, arguing: “When the police officers first get there;
these are armed, uniformed people there to help her. And she says nothing.”
Defense counsel objected and moved for a mistrial, arguing that this was a
comment on Horwitz’s right to remain silent. After the trial court overruled the
objection, the prosecutor repeatedly emphasized Horwitz’s pre-arrest, pre-Miranda
silence and reminded the jury that defense counsel suggested that someone else
could have broken into the house and committed the murder:
You know from all the officers, they thought this was a suicide
call. They’re over there trying to console [Horwitz]. And she says
nothing to them.
....
The Defendant, at that time, had no right to silent [sic].
You can take that as evidence of consciousness of guilt, when
she does not speak to Luis Garcia or Kristi Coleman or to Radley.
There is no right to remain silent at that time. You can take that as
evidence of consciousness of guilt.
....
And you heard from David Cockrum; he’s also with Admirals
[Cove]. He went in with Garcia to that same area of the victim. He
also went through the gate and out through the gate. [Horwitz] said
nothing to David Cockrum.
....
Officer Mayernik, from Jupiter Police Department, he was—
when he gets there, there’s two security guys there. That would be
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Luis and David Cockrum. Garcia briefed him. Mayernik, when he
goes in; [Horwitz] said nothing to him.
....
EMT Bryan Dittmer comes in, pronounces him dead. And
[Horwitz] says nothing to Bryan Dittmer.
....
Chris Fisher arrives a few minutes after Garcia. . . . And
[Horwitz] said nothing to him.
And keep in mind, again, we talk about people’s words and
actions before, during and after. So up to this point, [Horwitz] has
said nothing but, he was so awful. He was so awful. And he was—
said he was going to do this.
Not, oh my God, I don’t know what happened.
Not, oh my God. I was dead asleep and there was a man at the
foot of the bed.
Not, oh my God. The alarm went off and there was a man
looking through my bedroom drawers for a gun. Not any of that.
No hit man. No third person. Not any such thing. And it’s in
her bedroom. So far she had said nothing to any of these initial
officers or EMT.
Kristi Coleman, you heard from. Eighteen years she’s been a
police officer.
She thinks it’s a suicide call. She goes over there to comfort
the family and calls the chaplain.
She says her first words to [Horwitz] are, are you okay?
And [Horwitz], did like that, (indicating). And prompted Kristi
to say, were you—were you in the room when the gun went off? And
[Horwitz] did not answer.
(Emphasis added.)
Defense counsel objected again on the same basis, but the trial court
overruled the objection. During the State’s rebuttal closing argument, the
prosecutor continued to comment on Horwitz’s silence:
And then Officer Coleman is concerned. And she says, were
you in the room when he was shot, when the gun went off? Nothing.
That’s what she says, absolutely nothing. And you can consider that.
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The fact that when someone asks her if she’s in the room when she
shot—when they think it’s suicide, she’s [sic] says nothing.
....
When Mr. Garcia and Miss Coleman ask her questions, she
does not take the blame for her son. She does not say that Lanny [sic]
Horwitz did it. Instead, she says nothing. This isn’t a situation where
she took the blame for her son.
(Emphasis added).
At the conclusion of the trial, Horwitz was found guilty of first-degree
murder with a firearm. On appeal, Horwitz argued that the trial court erred in
permitting the State to adduce evidence about and comment extensively on her pre-
arrest, pre-Miranda silence.
The Fourth District reversed Horwitz’s conviction on the ground that the
trial court committed harmful error in admitting evidence of Horwitz’s pre-arrest,
pre-Miranda silence. Horwitz, 2015 WL 671136, at *1 n.1, *4. While
acknowledging that a plurality of the United States Supreme Court in Salinas v.
Texas, 133 S. Ct. 2174 (2013), required a defendant to expressly invoke the
privilege against self-incrimination in order for the Fifth Amendment to bar
comment on pre-arrest, pre-Miranda silence, the Fourth District recognized that
Florida may interpret its privilege against self-incrimination to afford greater
protection than its federal counterpart. Horwitz, 2015 WL 671136, at *3. The
Fourth District relied on this Court’s decision in Hoggins, 718 So. 2d at 770-71,
770 n.11, in concluding that Horwitz’s pre-arrest, pre-Miranda silence was
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inadmissible under Florida law because she did not testify. Judge Klingensmith
dissented, asserting that Salinas should serve as controlling precedent because it
was decided after this Court’s decision in Hoggins. Horwitz, 2015 WL 671136, at
*4 (Klingensmith, J., dissenting). The Fourth District certified as a question of
great public importance whether, under Florida law, the State may introduce a non-
testifying defendant’s pre-arrest, pre-Miranda silence. Id. at *4.
ANALYSIS
The issue before the Court is whether, under article I, section 9 of the
Florida Constitution and Florida evidentiary law, the State is precluded from using
a defendant’s pre-arrest, pre-Miranda silence as substantive evidence of guilt when
the defendant does not testify at trial. The State asserts that a defendant’s silence
occurring prior to his or her arrest is admissible because the privilege against self-
incrimination does not apply outside of the context of arrest or custodial
interrogation, unless the defendant has expressly invoked the privilege against self-
incrimination. Further, the State argues that pre-arrest, pre-Miranda silence should
not be “categorically barred under evidentiary rules as its probative value is not
always substantially outweighed by its prejudicial effect.” Horwitz counters that
the Florida Constitution is more protective of the privilege against self-
incrimination than its federal counterpart, and that, under this Court’s precedent,
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pre-arrest, pre-Miranda silence is admissible only if it is inconsistent with the
defendant’s trial testimony.
In addressing the contours of the restrictions on the State’s use of a
defendant’s pre-arrest, pre-Miranda silence, we begin with the Florida
Constitution’s more protective privilege against self-incrimination as compared to
its federal counterpart. We then analyze the issue under Florida evidentiary law,
addressing the issues of relevancy and whether any probative value is substantially
outweighed by the danger of unfair prejudice.
I. FLORIDA’S CONSTITUTIONAL PRIVILEGE AGAINST SELF-
INCRIMINATION
Because the Fourth District’s decision construes a constitutional provision,
we review this pure question of law de novo. Henry v. State, 175 So. 3d 675, 676-
77 (Fla. 2015). The pertinent provision of the Florida Constitution provides that
“No person shall . . . be compelled in any criminal matter to be a witness against
oneself.” Art. I, § 9, Fla. Const.2 This constitutional right has been referred to
interchangeably as the “right to remain silent” and the “privilege against self-
incrimination.”
2. The Fifth Amendment states, in pertinent part: “No person . . . shall be
compelled in any criminal case to be a witness against himself.” U.S. Const.
amend. V.
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Florida’s privilege against self-incrimination is fundamental; it is part of the
Florida Constitution’s Declaration of Rights, “a series of rights so basic that the
framers of our Constitution accorded them a place of special privilege.” Traylor v.
State, 596 So. 2d 957, 963 (Fla. 1992); art. I, Fla. Const. As this Court explained
in Traylor:
Special vigilance is required where the fundamental rights of
Florida citizens suspected of wrongdoing are concerned, for here
society has a strong natural inclination to relinquish incrementally the
hard-won and stoutly defended freedoms enumerated in our
Declaration in its effort to preserve public order. Each law-abiding
member of society is inclined to strike out at crime reflexively by
constricting the constitutional rights of all citizens in order to limit
those of the suspect—each is inclined to give up a degree of his or her
own protection from government intrusion in order to permit greater
intrusion into the life of the suspect. The framers of our Constitution,
however, deliberately rejected the short-term solution in favor of a
fairer, more structured system of criminal justice:
These rights [enumerated in the Declaration of Rights]
curtail and restrain the power of the State. It is more
important to preserve them, even though at times a guilty
man may go free, than it is to obtain a conviction by
ignoring or violating them. The end does not justify the
means. Might is not always right. Under our system of
constitutional government, the State should not set the
example of violating fundamental rights guaranteed by
the Constitution to all citizens in order to obtain a
conviction.
Bizzell v. State, 71 So. 2d 735, 738 (Fla. 1954). Thus, even here—
especially here—where the rights of those suspected of wrongdoing
are concerned, the framers drew a bright line and said to government,
“Thus far shalt thou come, but no farther.”
596 So. 2d at 963-64.
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Unless the Florida Constitution specifies otherwise,3 this Court, as the
ultimate arbiter of the meaning and extent of the safeguards and fundamental rights
provided by the Florida Constitution, may interpret those rights as providing
greater protections than those in the United States Constitution. State v. Kelly, 999
So. 2d 1029, 1042 (Fla. 2008). Put simply, the United States Constitution
generally sets the “floor”—not the “ceiling”—of personal rights and freedoms that
must be afforded to a defendant by Florida law. Id. As we explained in Kelly, “we
have the duty to independently examine and determine questions of state law so
long as we do not run afoul of federal constitutional protections or the provisions
of the Florida Constitution that require us to apply federal law in state-law
contexts.” 999 So. 2d at 1043 (emphasis in original). Our Court reemphasized
what we previously stated in Traylor: “[w]hen called upon to decide matters of
fundamental rights, Florida’s state courts are bound under federalist principles to
give primacy to our state Constitution and to give independent legal import to
every phrase and clause contained therein.” Id. at 1044 (quoting Traylor, 596 So.
2d at 962-63).
3. The Florida Constitution expressly provides that the right against
unreasonable searches and seizures, article I, section 12, Florida Constitution, and
the right against cruel or unusual punishment, article I, section 17, Florida
Constitution, must be read in conformity with federal law.
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As this Court held in Traylor, the privilege against self-incrimination, as one
of our Constitution’s fundamental rights, must be—and has long been—broadly
construed. 596 So. 2d at 965 (citing Ex parte Senior, 19 So. 652, 654 (Fla. 1896)).
Indeed, as this Court has since reemphasized, the privilege against self-
incrimination provided in the Florida Constitution offers more protection than the
right provided in the Fifth Amendment to the United States Constitution. Rigterink
v. State, 66 So. 3d 866, 888 (Fla. 2011).
This Court’s interpretation of the state constitutional privilege against self-
incrimination as providing more protection than its federal counterpart was applied
to a defendant’s post-arrest, pre-Miranda silence in Hoggins, 718 So. 2d 761. In
that case, we held that the State’s use of this post-arrest, pre-Miranda silence to
impeach the defendant’s trial testimony violated Florida’s constitutional privilege
against self-incrimination, even though such impeachment evidence is not barred
by the Fifth Amendment. Id. at 765, 769-72. In other words, we interpreted the
Florida constitutional right as providing more “rigorous constraints on the use of” a
defendant’s post-arrest, pre-Miranda silence than what is permissible under the
Federal Constitution. Id. at 768. In Hoggins, we expressly departed from the
United States Supreme Court’s decision in Fletcher v. Weir, 455 U.S. 603, 606
(1982), which held that the federal constitution did not preclude states from using a
defendant’s post-arrest, pre-Miranda silence for impeachment purposes. Id. at 769.
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In Hoggins, after an armed robbery of a convenience store, the perpetrator
“absconded with the cash register drawer and a cigar box containing lottery
tickets.” Id. at 762. The defendant was spotted riding a bicycle while carrying the
missing items. Id. The defendant testified at trial, claiming that his bicycle had
been stolen and that he had witnessed someone run into his apartment complex and
hide something, which he later discovered was the drawer and cigar box. Id. at
763. The prosecutor cross-examined the defendant, asking whether the defendant
had previously provided that explanation after his arrest, and the defendant
admitted that he had not. Id. The prosecutor also relied on this “silence” in
closing arguments, pointing out that the defendant did not tell the same version of
events to the police on the night of his arrest that he provided in his testimony at
trial. Id. at 764.
We reached a different conclusion in Hoggins than the Supreme Court on
the issue of post-arrest, pre-Miranda silence for two reasons: (1) “unlike the United
States Supreme Court, Florida courts have recognized that the defendant does not
waive his or her right to silence at the time of arrest by taking the stand in his or
her own defense,” and (2) “[w]hile the absence of Miranda warnings may prevent a
federal due process violation from occurring where the defendant’s post-arrest
silence is used for impeachment purposes, the same is not true of the defendant’s
right to remain silent. The absence of such warnings does not add to or detract
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from an individual’s right to remain silent.” Id. at 769-70. In Hoggins, we
recognized that the privilege against self-incrimination must be scrupulously
protected, regardless of whether Miranda warnings were given:
If one has a right upon arrest not to speak for fear of self-
incrimination, then the mere fact the police call his
attention to that right does not elevate it to any higher
level. If it were otherwise, an ignorant defendant who
was advised of his right to remain silent would be
protected against use of his silence to impeach him at
trial; but an educated, sophisticated defendant familiar
with his right to remain silent who was not apprised of
that right by the police would be subject to impeachment
for the exercise of a known constitutionally protected
right.
[Webb v. State, 347 So. 2d 1054, 1056 (Fla. 4th DCA 1977).] Thus,
by relying on the right to remain silent to preclude evidence of and
comment upon postarrest silence we avoid treating differently
defendants who are aware of their Miranda rights and those who are
not. Moreover, we do not provide police officers with an incentive to
delay the giving of Miranda warnings.
Id. at 770.
Although in Hoggins, this Court concluded that “the use of a defendant’s
silence at the time of arrest violates article I, section 9 of Florida’s Constitution
regardless of whether Miranda warnings have been given,” the Court also reasoned
that its holding did not extend to impeachment of the defendant with pre-arrest,
pre-Miranda silence. Id. We further stated that a testifying defendant may be
impeached with pre-arrest, pre-Miranda silence “only if the silence was
inconsistent with the defendant’s testimony at trial.” Id. at 770 & n.11 (emphasis
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added). While the State argues that the statement in Hoggins was dicta, it logically
follows that if this Court required inconsistency before silence could be used to
impeach the defendant in Hoggins, this Court would not condone a more
substantial incursion on the privilege against self-incrimination by allowing a
defendant’s pre-arrest, pre-Miranda silence to be used as substantive evidence of
guilt.
In addition to arguing that our statement in Hoggins regarding pre-arrest,
pre-Miranda silence was dicta, the State specifically urges us to follow the United
States Supreme Court’s decision in Salinas, 133 S. Ct. 2174. In Salinas, the
Supreme Court addressed the issue of whether pre-arrest silence may be used as
substantive evidence of a defendant’s guilt. The plurality in Salinas concluded
that, prior to arrest and outside the context of custodial interrogation, silence alone
is not enough to invoke the protections of the Fifth Amendment; rather, an express
invocation is necessary. 133 S. Ct. at 2183-84. Thus, the Government’s use of the
defendant’s pre-arrest, pre-Miranda silence was permissible because the defendant
had not expressly invoked the privilege against self-incrimination. Id. at 2184.4
4. Although we decide the present case on Florida law, we note that Salinas
was a fragmented decision: the plurality was comprised of Justices Alito and
Kennedy, and Chief Justice Roberts. Justices Thomas and Scalia concurred in the
judgment, and four justices—Breyer, Ginsburg, Sotomayor, and Kagen—
dissented. See Salinas, 133 S. Ct. at 2184 (Thomas, J., concurring in judgment),
2185 (Breyer, J., dissenting). The precedential value of a fragmented decision,
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In Salinas, the defendant was convicted of two counts of murder, and the
“silence” in question occurred during a police interview at the police station before
the defendant was arrested. Id. at 2178. Although he had answered other
questions during the police interview, when asked whether his shotgun would
match the shells recovered at the scene of a murder, the defendant looked at the
floor, shuffled his feet, bit his bottom lip and clenched his hands in his lap. Id.
The defendant did not testify at trial, but the prosecutor stated to the jury, among
other things, that “[a]n innocent person” would have said, “What are you talking
about? I didn’t do that. I wasn’t there.” Id. at 2185 (Breyer, J. dissenting).
The plurality explained that there are two exceptions to the requirement that
witnesses invoke the privilege against self-incrimination: (1) the right not to testify
at the criminal defendant’s own trial; and (2) when governmental coercion is
present, making the forfeiture of the privilege involuntary. Id. at 2179-80.
However, neither applied in Salinas. Id. The plurality refused to adopt a third
exception for cases in which a witness stands mute and thereby declines to give an
answer that officials suspect would be incriminating. Id. at 2180-81.
Justice Breyer, in dissent, and joined by Justices Ginsburg, Sotomayor, and
Kagan, explained that the prosecutor’s ability to use a defendant’s silence against
where no single rationale enjoys the assent of five justices, is based upon the
“narrowest grounds.” See Marks v. United States, 430 U.S. 188, 193 (1977).
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him as evidence of guilt places the defendant in an “impossible predicament”:
either to answer the question or to remain silent. Id. at 2186 (Breyer, J.,
dissenting). Given the circumstances where a defendant stands mute during
questioning, the dissent explained, the defendant invokes his privilege against self-
incrimination if the surrounding circumstances raise a reasonable inference that the
defendant is intending to do so. Id. at 2189.
We decline to apply the reasoning of the plurality in Salinas to whether a
non-testifying defendant’s privilege against self-incrimination under the Florida
Constitution is violated by the State’s use of his or her pre-arrest, pre-Miranda
silence as substantive evidence of the defendant’s guilt. In Hoggins, we concluded
that a defendant’s pre-arrest, pre-Miranda silence is admissible only to impeach the
defendant’s inconsistent trial testimony. 718 So. 2d at 770 n.11. Use of the
defendant’s silence as substantive evidence of the defendant’s guilt is certainly
more harmful than its use to impeach the defendant’s credibility on the stand.
On the other hand, to allow the State to introduce evidence of and comment
on a defendant’s pre-arrest, pre-Miranda silence burdens the defendant’s privilege
against self-incrimination at trial. Particularly, when a defendant exercises the
privilege against self-incrimination at trial by not taking the stand, the defendant
may be doing so, in part, to prevent the State from having the opportunity for
impeachment. Allowing the defendant’s previous silence to be used as substantive
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evidence of consciousness of guilt would penalize the defendant for exercising that
right at trial. The defendant should not be compelled to make the choice between
testifying—with the possibility that his or her earlier silence might be used to
impeach him or her—and not testifying—thereby, under the State’s view, allowing
the State to use the defendant’s earlier silence as substantive evidence of the
defendant’s guilt. Our analysis is entirely consistent and directly flows from our
decision in Hoggins, as well as our consistent commitment to providing greater
protection to a defendant’s privilege against self-incrimination guaranteed by the
Florida Constitution.
Our reasoning is also consistent with that of the Pennsylvania Supreme
Court in Commonwealth v. Molina, 104 A.3d 430 (Pa. 2014). In Molina, the
murder victim was missing for six months, and early into the investigation of her
disappearance, a detective communicated with the defendant over the telephone.
Id. at 433. However, when the detective asked the defendant to meet in person, he
refused. Id. At trial, the prosecutor was allowed to argue in closing argument that
the defendant “refuse[d] to cooperate with the Missing Persons detectives.” Id. at
433-34.
The Pennsylvania Supreme Court held that the use of the defendant’s pre-
arrest silence as substantive evidence of guilt burdened the right against self-
incrimination. It reasoned that the timing of the silence “is not relevant to the
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question of whether a prosecutor’s use of the silence as substantive evidence of
guilt violates an individual’s right against self-incrimination.” Id. at 449-50. The
court explained that the “underpinnings of the right against self-incrimination are
not based on timing but on whether a person has been compelled to be a witness
against himself at a criminal proceeding.” Id. (emphasis added). A forced
confession is violative of the Fifth Amendment and therefore inadmissible at trial
because “it would result in the defendant being ‘compelled to give evidence
against himself.’ ” Id. (quoting Pa. Const. art. 1 § 9).
The Molina court explained that the right is “burdened” by allowing the
State to use the defendant’s pre-arrest silence as substantive evidence of the
defendant’s guilt during the trial. Id. Embracing the cogent reasoning of its
former Justice Musmanno, the Court delineated the “conundrum” in which a
defendant is placed: “If [a defendant] could not be made a self-accusing witness by
coerced answers, he should not be made a witness against himself by unspoken
assumed answers.” Id. (citing Com. v. Dravecz, 227 A.2d 904, 907 (Pa. 1967)).
For all these reasons, we conclude that a defendant’s privilege against self-
incrimination guaranteed under article I, section 9 of the Florida Constitution is
violated when his or her pre-arrest, pre-Miranda silence is used against the
defendant at trial as substantive evidence of the defendant’s consciousness of guilt.
Intertwined with these constitutional grounds is the evidentiary reason why the
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introduction of the defendant’s pre-arrest, pre-Miranda silence as evidence of guilt
is impermissible.
II. EVIDENTIARY BASIS FOR EXCLUSION
Even if the Florida Constitution did not preclude the use of a non-testifying
defendant’s pre-arrest, pre-Miranda silence as substantive evidence of guilt, its use
would be precluded under Florida evidentiary law. We observed in Hoggins that
“[u]nder federal evidentiary law, pre-Miranda silence must be inconsistent with
defendant’s exculpatory statement at trial before it can be admitted to impeach the
defendant.” 718 So. 2d at 766 (citing Jenkins v. Anderson, 447 U.S. 231, 239
(1980)). “If no inconsistency exists, then the silence lacks probative value and is
inadmissible.” Id. As the United States Supreme Court has stated, each state is
“free to formulate evidentiary rules defining the situations in which silence is
viewed as more probative than prejudicial.” Jenkins, 447 U.S. at 240.
Under Florida’s rules of evidence, any type of evidence must meet a
threshold of relevance. See Chandler v. State, 534 So. 2d 701, 703 (Fla. 1988).
Relevant evidence is defined as “evidence tending to prove or disprove a material
fact.” § 90.401, Fla. Stat. (2013). Relevancy has been described as “whether the
evidence has any logical tendency to prove or disprove a fact. If the evidence is
logically probative, it is relevant and admissible unless there is a reason for not
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allowing the jury to consider it.” Charles W. Ehrhardt, Ehrhardt’s Florida
Evidence § 401.1 (2011 ed.).
In Hoggins, we stated that “Florida’s rules of evidence would preclude . . .
use” of the defendant’s pre-arrest silence if it “was not inconsistent with his [or
her] trial testimony.” 718 So. 2d at 770. Such limit on the use of silence exists
because “[s]ilence is generally deemed ambiguous.” Id. at 771. We explained in
Hoggins that “[t]he time of arrest is not an occasion when circumstances naturally
call upon a defendant to speak out. On the contrary, there are many reasons that a
defendant may choose to remain silent.” Id. This Court cited to the reasoning of
the United States Supreme Court in United States v. Hale, 422 U.S. 171 (1975):
At the time of arrest . . . innocent and guilty alike—perhaps
particularly the innocent—may find the situation so intimidating that
they may choose to stand mute. A variety of reasons may influence
that decision. In these often emotional and confusing circumstances, a
suspect may not have heard or fully understood the question, or may
have felt there was no need to reply. He may have maintained silence
out of fear or unwillingness to incriminate another. Or the arrestee
may simply react with silence in response to the hostile and perhaps
unfamiliar atmosphere surrounding his detention.
Hoggins, 718 So. 2d at 771 (quoting Hale, 422 U.S. at 177).
A defendant’s silence prior to the time of formal arrest is also ambiguous.
For example, before arrest, an individual is just as susceptible to being in fear that
his or her story will not be believed, not hearing or understanding the question,
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having the desire to protect another, being introverted, being in shock, or having
prior knowledge of his or her Miranda rights.
A defendant, who is being questioned by the police but not yet under arrest,
may be intimidated by the police questioning or may be in an emotional state, such
as shock or confusion, especially if the questioning occurs in close proximity to the
crime. If the silence is in response to a question, the defendant may not have heard
the question, but if there was no question asked at all, a person’s silence is even
more ambiguous. There are simply too many possible explanations for why the
defendant may not make a statement or respond to a question apart from having a
consciousness of guilt. In other words, a non-testifying defendant’s pre-arrest, pre-
Miranda silence will often have little evidentiary probative value or relevance.
On the other side of the equation is the danger that any possible probative
value will be outweighed by unfair prejudice. Evidence is “inadmissible if its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, misleading the jury, or needless presentation of cumulative
evidence.” § 90.403, Fla. Stat. (2011). The ambiguity of silence, when used as
substantive evidence of guilt, is especially prejudicial. A jury that is allowed to
consider a defendant’s ambiguous silence as evidence of guilt could conclude that
the defendant’s failure to explain the silence—which of course the defendant is not
obligated to do—supports an inappropriate belief that the defendant is guilty.
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Indeed, by allowing the State to argue silence as evidence of guilt implicitly and
inappropriately shifts the burden to the defendant to provide an explanation.
Part of the potential for unfair prejudice arises by the fact that the silence at
issue—pre-arrest, pre-Miranda silence—is usually introduced through a witness
who is a State actor. As we have explained in the past, “[w]hen a police officer,
who is generally regarded by the jury as disinterested and objective and therefore
highly credible, is the corroborating witness, the danger of improperly influencing
the jury becomes particularly grave.” Martinez v. State, 761 So. 2d 1074, 1080
(Fla. 2000) (quoting Rodriguez v. State, 609 So. 2d 493, 500 (Fla. 1992)). Florida
courts have recognized that “[t]here is the danger that jurors will defer to what they
perceive to be an officer’s special training and access to background information
not presented during trial.” Charles v. State, 79 So. 3d 233, 235 (Fla. 4th DCA
2012).
This combination of a lack of probative value and the danger of unfair
prejudice is particularly evident when a defendant does not testify at trial and does
not provide an explanation for the silence so that the jury is left to speculate. As
the United States Supreme Court stated in Hale, “[i]f the Government fails to
establish a threshold inconsistency between silence at the police station and later
exculpatory testimony at trial, proof of silence lacks any significant probative
value and must therefore be excluded.” 422 U.S. at 176.
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Because of its lack of probative value, coupled with the danger of unfair
prejudice under Florida evidentiary law, the State may not introduce a defendant’s
pre-arrest, pre-Miranda silence as substantive evidence of the defendant’s
consciousness of guilt.5
III. THIS CASE
In this case, through its questioning of police officers and in closing
argument, the State repeatedly emphasized Horwitz’s silence and repeatedly
argued that her silence was “evidence of consciousness of guilt.” This use of
Horwitz’s silence violated her state constitutional privilege against self-
incrimination. It penalized her right not to testify at trial and forced Horwitz to
offer evidence, short of her own testimony, as to why she remained silent. Clearly
there were possible explanations for Horwitz’s silence other than guilt, including
her being in shock and unable to hear. Silence can “mean” anything, and a
defendant “should not be made a witness against himself by unspoken assumed
answers.” Molina, 104 A.3d at 450 (internal citation omitted).
In this case, the use of pre-arrest silence as consciousness of guilt was even
more harmful because the defendant has never provided an account of the crime
5. Although the certified question we address in this opinion specifically
relates to a defendant who does not testify at trial, it logically follows from
Hoggins that where the defendant does take the stand, the pre-arrest, pre-Miranda
silence is also not admissible as substantive evidence of guilt.
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herself or offered an exculpatory statement to law enforcement or the State.
Horwitz consistently remained silent, beginning with her initial interactions with
law enforcement officers following the murder and leading up to and including her
decision not to testify at trial.6 These circumstances are strong evidence that
Horwitz’s silence arose from either shock over her ex-husband’s death or from her
desire to invoke her privilege against self-incrimination. Based on constitutional
as well as evidentiary grounds, it was error for the trial court to allow the State to
introduce this evidence and allow the State to argue that the silence showed
Horwitz’s consciousness of guilt.
Finally, we reject the State’s argument that Horwitz’s silence was probative
in rebutting Horwitz’s theory that Radley or someone else committed the murder,
which included testimony about Radley’s demeanor and tone of voice on a
telephone call right after the murder with the mother of his daughter. That
testimony was limited to Radley’s demeanor and tone of voice. The introduction
of Horwitz’s failure to make specific statements as evidence of her consciousness
6. We specifically address Horwitz’s silence in her interactions with State
actors, specifically Officer Coleman, Officer Mayernik and Detective Frank. See
State v. Jones, 461 So. 2d 97, 99 (Fla. 1984). In addition to the State improperly
eliciting the testimony about Horwitz’s silence from Detective Frank because he is
a State actor, upon review of the record, his testimony also appears to be
problematic because he lacks the requisite personal knowledge to testify regarding
Horwitz’s silence in the presence of some of the witnesses. See § 90.604, Fla. Stat.
(2011).
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of guilt is not proper rebuttal to evidence of Radley’s demeanor. Additionally, the
testimony regarding Radley’s demeanor on the phone call was elicited during the
defense’s presentation of witnesses, well after the State had already introduced
evidence of Horwitz’s silence. Horwitz’s silence also is not proper rebuttal
evidence of the defense’s theory that Radley or someone else committed the
murder because Horwitz did not testify at trial and never made any statements that
would allow the introduction of her pre-arrest, pre-Miranda silence.
Horwitz’s silence was heavily relied upon by the prosecutor in this case as
substantive evidence of Horwitz’s consciousness of guilt. The prosecutor
questioned two law enforcement witnesses regarding Horwitz’s silence and
referred to it extensively in closing argument. As this Court has established in
prior cases, a defendant has a right to stand mute at trial, and anything “fairly
susceptible of being interpreted by the jury as a comment on [defendant’s] failure
to testify” is “a serious error.” See State v. Kinchen, 490 So. 2d 21, 22 (Fla. 1985).
There is no question in this case that the State directly commented on Horwitz’s
silence and used it as substantive evidence of guilt. Consistent with the Fourth
District’s decision below, we agree that the error was not harmless beyond a
reasonable doubt. Horwitz, 2015 WL 671136, at *4; State v. DiGuilio, 491 So. 2d
1129, 1135 (Fla. 1986).
CONCLUSION
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We hold that the State’s use of a defendant’s pre-arrest, pre-Miranda silence
as substantive evidence of guilt violates the Florida constitutional right against
self-incrimination, and the State is further precluded under Florida’s evidentiary
law from using that silence to argue a defendant’s consciousness of guilt. We
approve the Fourth District’s decision and remand for proceedings consistent with
this opinion.
It is so ordered.
LABARGA, C.J., and LEWIS, QUINCE, and PERRY, JJ., concur.
CANADY and POLSTON, JJ., concur in result.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal - Certified
Great Public Importance
Fourth District - Case No. 4D13-336
(Palm Beach County)
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Consiglia Terenzio,
Bureau Chief, and Luke Robert Napodano, Assistant Attorney General, West Palm
Beach, Florida,
for Petitioner
Jonathan Thomas Mann of the Law Offices of Robin Bresky, Boca Raton, Florida;
and W. Grey Tesh, West Palm Beach, Florida,
for Respondent
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