Garry Augustus Sheppard v. State

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014
GARRY AUGUSTUS SHEPPARD,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D12-4574
[July 23, 2014]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Edward H. Fine, Judge; L.T. Case No. 2012CF004588AMB.
Carey Haughwout, Public Defender, and Amy Lora Rabinowitz,
Assistant Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Nancy Jack,
Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Appellant raises two issues in his appeal of his conviction for burglary
and petit theft. Because we find that neither claim has merit, we affirm.
First, appellant claims the prosecutor improperly commented during
her closing statement on his right to remain silent, when she directed
jurors to use their common sense and rhetorically asked, “How else is his
palm print and his thumbprint going to end up in [the victims’] house?”
We find no merit in this claim, as identical comments were held not to be
a comment on silence in Smith v. State, 378 So. 2d 313, 313-14 (Fla. 5th
DCA 1980). We find the prosecutors’ comments in Flaherty v. State, 183
So. 2d 607, 608-09 (Fla. 4th DCA 1966), and Cunningham v. State, 404
So. 2d 759, 759 (Fla. 3d DCA 1981), distinguishable because in those
cases the prosecutors more specifically highlighted the defendants’
failures to provide explanations for the fingerprints and more directly
referenced the defendants’ failures to testify.
Second, appellant claims the trial court improperly limited his voir dire
of prospective jurors. We conclude the court did not abuse its discretion
by preventing appellant’s counsel from posing questions that the court
concluded were misstatements of the law or improper attempts to obtain
pre-commitments from the jurors. See Figueroa v. State, 952 So. 2d 1238,
1239 (Fla. 3d DCA 2007) (“[T]he trial court certainly has the discretion to
. . . prohibit counsel from asking improper questions . . . and to preclude
attorneys from pre-trying their cases or in obtaining a commitment on
ultimate issues . . . .”). This did not affect appellant’s right to impanel an
impartial jury or constitute an abuse of discretion. See generally Salazar
v. State, 991 So. 2d 364, 372 (Fla. 2008) (discretion is abused only where
no reasonable person would take the view adopted by the trial court or the
decision was arbitrary, fanciful, or unreasonable).
DAMOORGIAN, C.J., WARNER and MAY, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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